Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that: (a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares. (b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and 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 Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date. (c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby; (d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder; (e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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; (f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein; (h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects; (i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself the Company and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares each Underwriter as set forth opposite his name on Schedule I hereto, to each Underwriter that: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 Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement Agreement, and to sell, assign, transfer and deliver the Shares Offered Securities to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; and and, upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares Offered Securities to be delivered sold by the Selling Shareholder pursuant to this Agreement, delivery of such Offered Securities, as directed by the Representatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Offered Securities in the name of Cede or such other nominee and the crediting of such Offered Securities on the books of DTC to the securities account of the Underwriters (assuming that neither DTC nor 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 Applicable Closing DateOffered Securities), (A) DTC shall be a “protected purchaser” of such 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 Offered Securities and (C) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such 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 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 registry in accordance with its certificate of 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 entry to the account of the Underwriters on the records of DTC will have been made pursuant to the UCC.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree The execution and delivery by the Selling Shareholder of, any court or governmental authority or agency is necessary or required for and the performance by the Selling Shareholder of his its obligations hereunderunder, 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and will not contravene or conflict with, result in the Registration Statement a breach of, or constitute a default (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesor, if applicable) and 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 bothtime, conflict with or constitute a breach of, or default or Repayment Event would be in default) under, or result in require the creation or imposition consent of any lien, charge other party to (i) any agreement or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, it is bound or under which it is entitled to which any right or benefit including any pledge of the property Offered Securities or assets (ii) any provision of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges applicable law or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ decree or decree, regulation applicable to the Selling Shareholder of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body or foreign, 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, the General Disclosure Package or the Final Prospectus is, and on each Closing Date will be, true, correct and complete in all material respects, and on each Closing Date will not, contain any respective propertiesuntrue statement of a material fact or omit to state any material fact necessary to make such information not misleading, assets or operations;it being understood and agreed that the only such information consists of the information with respect to the Selling Shareholder under the caption “Selling 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 which that is designed to or which 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 Shares;Offered Securities.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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;
a United States person (las the term is defined in 7701(a)(30) 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 Internal Revenue Code of 1986, as amended) 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 such executor or trustee 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 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 accordance connection with the terms and conditions offering of this Agreement and the Custody Agreement and Offered Securities shall be deemed a representation and warranty by the Selling Shareholder to the Underwriters as valid as if 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 assistant 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 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 eventreliance.
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 and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The This Agreement has been duly authorized, executed and delivered by the Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such 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 and unencumbered 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractthis Agreement, indenturedelivery of such Shares, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentas directed by the Underwriters, to which 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 is a party 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 which he may be boundDTC, 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 would not have a material adverse effect in each case on the transactions contemplated herein), nor will such action result Company’s share register in any violation accordance with its memorandum and articles of any association and applicable law, statute, rule, regulation, judgment, order, writ or decree, (y) DTC will be registered as a “clearing corporation” within the meaning of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Section 8-102 of the Selling Shareholder or any respective properties, assets or operations;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.
(fi) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the extent, but only Selling Shareholder furnished to the extent, that such untrue statement or omission was made Company in writing by the Selling Shareholder expressly for use in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment amendments or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 eventsupplements 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, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder has Shareholder, and constitutes the valid and unencumbered title to 2,300,000 shares of Class A Common Stock binding agreement of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such At the Closing and upon execution and delivery of the Letter Agreement re: Share Sale (the “Letter Agreement”) between the Selling Shareholder will haveShareholder, valid Oaktree Fund Administration, LLC and unencumbered title to Oaktree Capital Management, L.P. (together with Oaktree Fund Administration, LLC, “Oaktree”), the Shares on each Applicable Closing Date, to be delivered execution and delivery by the Selling Shareholder on such Applicable Closing Date of, and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered performance by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunderits obligations under, this Agreement, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered custody agreement signed by the Selling Shareholder on such Applicable Closing Date.
and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares (cthe “Custody Agreement”) No filing withwill not contravene any provision of (i) applicable law, or authorization(ii) the certificate of incorporation or by-laws of the Selling Shareholder (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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any governmental body, agency or court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement 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 offering, issuance or offer and sale of the Shares.
(c) The Selling Shareholder Shares hereunder (i) has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the consummation meaning of Section 8-501 of the transactions contemplated New York Uniform Commercial Code (the “UCC”) in respect of, the Shares, which will, as of the Closing Date and upon execution and delivery by this Oaktree of the Letter Agreement, except such as be free and clear of all security interests, claims, liens, equities or other encumbrances, and (ii) has been already obtained or may be the legal right and power, and all authorization and approval required under the Act or the Rules and Regulationsby law, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares to enter into this Agreement and the Selling Shareholder Option Custody Agreement and to sell, transfer and deliver the Shares to be sold hereby;or a security entitlement in respect of such Shares.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and each such agreement is a legal, constitutes the valid and binding agreement of the Selling Shareholder;.
(e) The executionUpon payment for the Shares 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 performance of this Agreement and the consummation of the transactions contemplated by this Agreement and crediting occur, (x) such Shares will have been registered in the Registration Statement (including the issuance and sale name of such Selling Shareholder Shares and the Selling Shareholder Option SharesCede or another nominee designated by DTC, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect each case on the transactions contemplated herein)Company’s share registry in accordance with its certificate of incorporation, nor will such action result in any violation of any bylaws and applicable law, statute, rule, regulation, judgment, order, writ or decree, (y) DTC will be registered as a “clearing corporation” within the meaning of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Section 8-102 of the Selling Shareholder or any respective properties, assets or operations;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 not taken and will not take, directly or indirectly, any action which is designed delivered to or which has constituted stabilization or manipulation of the price of any security of Representative an executed lock-up agreement in substantially the Company to facilitate the sale or resale of the Shares;form attached hereto as Exhibit A.
(g) Neither The Selling Shareholder is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any Preliminary Prospectusmaterial 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 amendment information concerning the Company or supplement thereto contains 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 omits omit to state therein 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 case 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 extentSelling Shareholder Information (v) each broadly available road show, but only to if any, when considered together with the extentTime of Sale Prospectus, that such does not contain any untrue statement of a material fact or omission was made 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 (vi) 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 Section 2(h) do not apply to statements or omissions in the Registration Statement, any Preliminary Prospectus, 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 any amendment or supplement thereto omissions made in reliance upon and in conformity with written information relating to the Selling Shareholder furnished in writing to the Company by the Selling Shareholder pertaining, as such, 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”).
(hi) Neither the Selling Shareholder nor any of its subsidiaries, nor, 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, 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 no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreementknowingly engaged in, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive ofnow knowingly engaged in, or party to any agreement withand will not engage in, any regulatory agency having jurisdiction dealings or transactions 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 trustPerson, or in any country or territory, that at the case time of a partnership the dealing or corporation, by transaction is or was the dissolution subject of such partnership or corporation, or by the occurrence Sanctions.
(a) None of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitatedof its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or if 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 estate plan or trust should be terminatedaccount under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or if otherwise.
(k) Except for any such partnership or corporation should Swiss federal stamp duty on transfers of securities for consideration in the secondary market, which may be dissolveddue by, or if any 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 such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered 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 accordance with Section 18), and has the terms power to designate, appoint and conditions 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 the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution has taken no action which would directly 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.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, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(ii) 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 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 Agreement 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 Securities 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.
(iii) The Selling Shareholder has valid has, and unencumbered title to 2,300,000 shares of Class A Common Stock of at the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder Closing Time will have, valid and unencumbered title to to, or a valid “security entitlement” (as defined in Section 8-102 of the Shares on each Applicable Closing DateNew York Uniform Commercial Code) in respect of, the Securities to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares Securities to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Securities.
(iv) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares Securities to be delivered sold by the Selling Shareholder pursuant to this Agreement, delivery of such Securities, 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 Securities in the name of Cede or such other nominee and the crediting of such Securities on the books of DTC to the securities accounts of the several Underwriters (assuming that neither DTC nor any such Applicable Closing DateUnderwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Securities), (A) DTC shall be a “protected purchaser” of such 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 Securities and (C) no action based on any “adverse claim”, (as defined in Section 8-102 of the UCC) to such 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 Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” (as defined in 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.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(dv) The Selling Shareholder has delivered to the legal right, power and all authorizations and approvals required by law to enter into Representatives an executed “lock-up” agreement in substantially the Custody Agreement form attached hereto as Exhibit A (as defined in Section 4(j) hereofthe “Lock-up Agreement”). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;.
(ei) The executionRegistration Statement, delivery and performance of this Agreement and the 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 Shareswhen it became effective, did not contain and, as amended or supplemented, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains contain any untrue statement of a material fact or omits omit to state therein 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 each case connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Time (as defined in Section 2), but only to the extentGeneral Disclosure Package, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectus, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any amendment untrue statement of a material fact or supplement thereto 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 1(b)(vi) are limited in all respects to statements or omissions made in reliance upon and in conformity with written the information relating to the Selling Shareholder furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 writing by or on behalf of the Selling Shareholder expressly for use in accordance with the terms Registration Statement, the General Disclosure Package or the Prospectus, it being understood and conditions agreed that for purposes of this Agreement Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the Custody Agreement address and shall be as valid as if such death, incapacity, termination, dissolution other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement 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 eventProspectus in 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, represents and warrants to and covenants, solely agrees with respect to himself each of the Underwriters as of the date hereof and as of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Closing Date that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such The sale and delivery of the Firm Shares by the Selling Shareholder, the deposit of the Underlying Shares by the Selling Shareholder will have, valid and unencumbered title to with the Shares on each Applicable Closing Date, Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder on such Applicable Closing Date Shareholder, the European Share Deposit and full right, power the execution and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered delivery by the Selling Shareholder on such Applicable Closing Date hereunder; of, and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered performance by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withof its obligations under, this Agreement will not contravene any provision of applicable law, or authorizationthe 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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by under this Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution sale of the Securities.
(c) The Selling Shareholder beneficially owns and on the Closing Date will 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 in respect of, the Securities and the Underlying Shares to be represented by the Underwriters of ADSs to be sold by the Selling Shareholder Shares hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances; and the Selling Shareholder Option 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 sold hereby;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 rightright and power, power and all authorizations authorization and approvals approval required by law law, to enter into the Custody Agreement (as defined in Section 4(j) hereof). This this Agreement and to sell, transfer and deliver the Custody Agreement have been duly executed and delivered Securities to be sold by the Selling Shareholder and each or a security entitlement in respect of such agreement is a legal, valid and binding agreement of the Selling Shareholder;Securities.
(e) The ADSs representing the Underlying Shares were deposited in accordance with the provisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of 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 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 and performance or consummation of this Agreement Agreement, (ii) the sale and the consummation delivery of the transactions 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 by this Agreement and herein.
(g) The statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentamendment thereto, to which 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 (“ERISA”), (ii) a party plan or by which he may be boundaccount subject to Section 4975 of the Internal Revenue Code of 1986, as amended, or (iii) an entity deemed to which hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(i) The Selling Shareholder Information in the Registration Statement or any amendment thereof constitutes a fair summary of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;matters described therein.
(fj) The Selling Shareholder has not taken the power to submit, and will not takepursuant to Section 19(a) has, directly or indirectlyto the extent permitted by law, any action which is designed legally, validly, effectively and irrevocably submitted, to or which has constituted stabilization or manipulation the jurisdiction of the price 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 security 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 to facilitate the sale or resale of the Shares;
(g) Neither contained in Section 1 are not true and correct, is familiar with the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or any amendment information not disclosed in the Time of Sale Prospectus that has had, or supplement thereto contains 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 omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in (iii) the Registration Statement, any Preliminary 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 (vi) the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertainingdoes not contain and, as suchamended or supplemented, for use 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;
(h) The Selling Shareholder has no reason to believe , in the light of the circumstances under which they were made, not misleading, except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(l) do not true and correct apply to statements or omissions in all material respects;the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all None of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee should die or become incapacitatedof its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or if any such estate other person associated with 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 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 accordance 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 offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the 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 terms representations and conditions 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 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.
(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 Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless courts of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventNorway.
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, represents and warrants and covenants, solely to the Underwriter with respect to himself itself that, and acknowledges that the number of Selling Shareholder Shares Underwriter is relying upon such representations and warranties in purchasing the Selling Shareholder Option Shares set forth opposite his name on Schedule I heretoSecurities, to each Underwriter that:
(a) The Selling Shareholder 7.1 it has valid been formed and unencumbered title to 2,300,000 shares of Class A Common Stock is existing under the laws of the Companyjurisdiction of its formation and has all (corporate) power and authority (acting through its general partner) to own, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will havelease and operate its properties and assets, valid and unencumbered title including to own the Securities to be sold by it to the Shares on each Applicable Closing DateUnderwriter;
7.2 it has the requisite power, authority and capacity (acting through its general partner) to enter into this Agreement, and to perform its obligations hereunder, including to sell the Securities to be sold by it to the Underwriter;
7.3 this Agreement has been duly authorized, executed and delivered by the Selling Shareholder (acting through its general partner) and constitutes a legal, valid and binding obligation of the Selling Shareholder, enforceable against it in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of indemnity and contribution may be limited by applicable law;
7.4 as of the date hereof, and as of the Closing Time, and prior to delivery to the Underwriter, the Selling Shareholder will be the beneficial owner of the Securities to be sold and delivered by it (or the beneficial owner of multiple voting shares of the Company convertible into the number of Securities to be sold and delivered by it);
7.5 as of the date hereof, other than as disclosed in the Offering Documents or as has been waived in full in respect of the Offering, no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase of any of the Securities owned by the Selling Shareholder;
7.6 all actions required to be taken by or on such Applicable Closing Date and full rightbehalf of the Selling Shareholder or its general partner, power and authority including the passing of all requisite resolutions, so as to enter into this Agreement and to sell, assign, transfer duly sell and deliver the Shares to be delivered Securities held by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder(or, the several Underwriters will acquire valid and unencumbered title to the Shares as applicable, to be delivered held by the Selling Shareholder on further to the conversion of the multiple voting shares of the Company currently held by it) have been taken;
7.7 except, with respect to Selling Shareholder Contracts (as defined below) and Selling Shareholder Laws (as defined below), for such Applicable Closing Date.
(c) No filing withbreaches, violations, conflicts or authorizationdefaults that do not or would not, approvalindividually or in aggregate, consentpreclude the Selling Shareholder from complying with its obligations hereunder, license, order, registration, qualification the Selling Shareholder is not in violation or decree default of, any court or governmental authority or agency is necessary or required for nor will the execution and delivery of this Agreement, and the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement, in connection with including 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares Securities to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is Shareholder, result in any breach or violation of, or be in conflict with, or constitute a legaldefault under, valid and binding agreement or create a state of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 facts which after notice or lapse of time time, or both, conflict with or would constitute a breach ofdefault under, or default give rise to any right to accelerate the maturity or Repayment Event require the prepayment of any indebtedness under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to (i) any term or provision of the constating documents or by-laws or any resolution of the directors or shareholders, (ii) any material contract, note, indenture, mortgage, deed of trust, loan joint venture or credit agreement, note, lease partnership arrangement or any other agreements or instrument, license to which the Selling Shareholder is a party or by which he may be bound, bound or to which any of the business, operations, property or assets of the Selling Shareholder is are subject (except for such conflictscollectively, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein“Selling Shareholder Contracts”), nor will such action result in or (iii) any violation of any applicable statute, law, statute, rule, regulation, judgment, orderorder or decree applicable to the Selling Shareholder or the business, writ operations or decreeassets of the Selling Shareholder, of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body, arbitrator or foreign, other authority having jurisdiction over the Selling Shareholder or any respective properties(collectively, assets or operationsthe “Selling Shareholder Laws”);
(fA) The on the Closing Date, the Selling Shareholder will have beneficial ownership of the Securities to be sold by it, free and clear of any Lien (other than restrictions on transfer that have been waived in full in respect of the Offering), except as provided in this Agreement; (B) the Selling Shareholder has, and will have, on the Closing Date, the full right, power and authority (acting through its general partner) to sell, assign, transfer and deliver the Securities to be sold by it to the Underwriter hereunder; and (C) upon delivery of the Securities to be sold by it and payment of the Purchase Price, the Underwriter will obtain beneficial ownership of the Securities to be acquired by it from the Selling Shareholder, free and clear of any Lien;
7.9 neither the Selling Shareholder nor any affiliate of the Selling Shareholder has not taken and taken, nor will not the Selling Shareholder or any affiliate of the Selling Shareholder take, directly or indirectly, any action which is designed to or which has constituted constitutes or 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 SharesSecurities;
(g) Neither the Registration Statement7.10 no approval, authorization, consent or other order of, permit, qualification, license, decree, and no filings, registration or recording with, any Preliminary Prospectusgovernment, governmental instrumentality, authority, agency or court having jurisdiction over the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact Selling Shareholder is required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertainingfor the performance by the Selling Shareholder of its obligations hereunder in connection with the sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except as have been or will be obtained or made prior to the Closing;
7.11 other than as contemplated hereby, there is no person acting at the request of the Selling Shareholder who is entitled to any brokerage or agency fee in connection with the sale of the Securities;
7.12 the Selling Shareholder represents and warrants that it has complied with or obtained a waiver of all requirements required to be obtained by it, in connection with the Offering under the Registration Rights Agreement;
7.13 the Selling Shareholder represents and warrants that either: (i) it is not (1) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as suchamended (“ERISA”), for use therein;
(h2) The Selling Shareholder has no reason a plan or account subject to believe that Section 4975 of the representations and warranties Code, or (3) 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; or (ii) the sale of the subordinate voting shares of the Company set forth to the Underwriter will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a similar violation under any other laws or regulations that are similar to such provisions of ERISA or the Code;
7.14 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 Section 3 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);
7.15 each delivery of the Preliminary Offering Documents, the Final Offering Documents and any Offering Document Amendment in respect of the Preliminary Offering Document or the Final Offering Documents to the Underwriter by the Company in accordance with this Agreement will constitute representation and warranty of the Selling Shareholder to the Underwriter that at the respective times of delivery, the Selling Shareholder Matters as applicable to the Selling Shareholder are not true and correct in all material respects;respects and contain no misrepresentation; and
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all 7.16 as of the Selling Shareholder Shares and date hereof, as of the Selling Shareholder Option Shares to be sold Closing Date, the sale of the Securities by the Selling Shareholder have been placed in custody under a Custody Agreement, is not prompted by any material non-public information concerning the Company or the Subsidiaries that is required to be disclosed in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed Offering Documents and delivered by the 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 such executor or trustee 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 eventso disclosed.
Appears in 2 contracts
Sources: Underwriting Agreement (BRP Inc.), Underwriting Agreement (BRP Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 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, agency or 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 and unencumbered 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters 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 Applicable Closing Date.
Underwriter has notice of any adverse claim (cwithin the meaning of Section 8-105 of the UCC) No filing withto such Shares), or authorization(A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, approval(B) under Section 8-501 of the UCC, consentthe Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, licensewithin the meaning of Section 8-102 of the UCC, orderto such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, registrationthe Selling Shareholder may assume that when such payment, qualification or decree ofdelivery and crediting occur, any court or governmental authority or agency is necessary or required for the performance (x) such Shares being sold by the Selling Shareholder will have been registered in the name of his obligations hereunderCede or another nominee as may be designated by DTC, in connection each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” and thus a “securities intermediary” within the offering, issuance or sale meaning of Section 8-102 of the Selling Shareholder Shares hereunder or UCC and (z) appropriate entries to the consummation accounts of the transactions contemplated by this Agreement, except such as has several Underwriters on the records of DTC will have been already obtained or may be required under made pursuant to the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;UCC.
(de) The Selling Shareholder has delivered to M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC an executed lock-up agreement in substantially the legal right, power and all authorizations and approvals required by law to enter into form attached hereto as Exhibit A (the Custody Agreement (as defined in Section 4(j) hereof“Lock-up Agreement”). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;.
(f) The Selling Shareholder has is not taken and will not take, directly prompted by any information concerning the Company or indirectly, any action its subsidiaries which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither not set forth in the Registration Statement, any Preliminary Prospectus, 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 any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 case sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 5), but only to or the extentOption Closing Date, that such 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 omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary 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 (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any amendment untrue statement of a material fact or supplement thereto 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 are limited in all respects to statements or omissions made in reliance upon and in conformity with written information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder pertaining, as such, expressly for use therein;
(h) The 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 has no reason to believe that is the representations and warranties name of the Company set forth Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) that appear in Section 3 are not true and correct in all material respects;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 deliver not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (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 Form W-8;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) Certificates in negotiable form representing all The operations of the Selling Shareholder Shares 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 Option Shares or any of its subsidiaries with respect to be sold by the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder have been placed in custody under a Custody AgreementShareholder, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");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 order such plan or directive ofaccount under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;otherwise.
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties 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 such executor or trustee 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 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 accordance with Section 17(a)), and has the terms power to designate, appoint and conditions 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 and in any of 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 eventSpecified 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, represents and warrants to and covenants, solely agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The This Agreement has been duly authorized, executed and delivered by the Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such 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 and unencumbered 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractthis Agreement, indenturedelivery of such Shares, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentas directed by the Underwriter, to which 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 Underwriter (assuming that neither DTC nor 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 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 Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder is a party 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 which he may be boundDTC, 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 would not have a material adverse effect in each case on the transactions contemplated herein), nor will such action result Company’s share register in any violation accordance with its memorandum and articles of any association and applicable law, statute, rule, regulation, judgment, order, writ or decree, (y) DTC will be registered as a “clearing corporation” within the meaning of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Section 8-102 of the Selling Shareholder or any respective properties, assets or operations;UCC and (z) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(fi) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the extent, but only Selling Shareholder furnished to the extent, that such untrue statement or omission was made Company in writing by the Selling Shareholder expressly for use in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment amendments or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 eventsupplements 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, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid (together with his spouse) is the lawful owner of the Shares to be sold by him pursuant to this Agreement and unencumbered has, and on the Closing Date (and Option Closing Date, if applicable) will have, good and clear title to 2,300,000 shares such Shares, free of Class A Common Stock of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever, other than pursuant to the CompanyShareholders' Agreement dated October 1, that are convertible into 2,300,000 Shares1994 (the "Shareholders' Agreement") and this Agreement.
(b) Such Upon delivery of and payment for such Shares pursuant to this Agreement, good and marketable title to such 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 terminated concurrently therewith.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power legal right and 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 the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunderin the manner provided herein and therein, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement of this Agreement and the Custody Agreement is a legal, valid and binding agreement of the Selling Shareholder;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 proceeding in equity or at law).
(ed) The execution, delivery and performance of this Agreement and the consummation of the transactions Other than as 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to to, or which has constituted 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;Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted
(ge) Neither The execution, delivery and performance of this Agreement by the Selling Shareholder, compliance by the Selling Shareholder with all the provisions hereof and the consummation of the 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 (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 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.
(f) Such parts of the Registration StatementStatement 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 Preliminary ProspectusOption Closing Date, the Prospectus or any amendment or supplement thereto contains if applicable), contain any untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein 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, in each case to the extent, but only to the extent, that such untrue statement or omission was made if there is any change in the Registration Statementinformation referred to in paragraph 7(f) above, any Preliminary except as contemplated in the Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;will immediately notify you of such change.
(h) The To the best knowledge of the Selling Shareholder has no reason to believe that Shareholder, the representations and warranties of the Company set forth contained in Section 3 6 hereof are not true and correct in all material respects;
(i) The correct; the Selling Shareholder will deliver has reviewed and is familiar with the Registration Statement as filed with the Commission and any preliminary prospectuses contained therein and has no knowledge of any material fact, condition or information not disclosed in such preliminary prospectus which has adversely affected or could adversely affect the condition, financial or otherwise, or the earnings, business affairs, or business prospects of the Company and its subsidiaries considered as one enterprise; to you prior to or 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 negotiable form representing all the best knowledge of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody AgreementShareholder, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is such preliminary prospectuses do not subject to contain 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 untrue statement of a partnership material fact or corporation, by omit to state any material fact necessary to make the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee 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 statements therein not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventmisleading.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 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 will have, valid and unencumbered title to on the Shares on each Applicable Closing Date, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered 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 Applicable Closing Date.
Underwriter has notice of any adverse claim (cwithin the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) No filing withto such Shares), or authorization(A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, approval(B) under Section 8-501 of the UCC, consentthe Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, licensewithin the meaning of Section 8-102 of the UCC, orderto such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance 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 his obligations hereunderCede or another nominee designated by DTC, in connection each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the offering, issuance or sale meaning of Section 8-102 of the Selling Shareholder Shares hereunder or UCC and (z) appropriate entries to the consummation accounts of the transactions contemplated by this Agreement, except such as has several Underwriters on the records of DTC will have been already obtained or may be required under made pursuant to the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;UCC. |US-DOCS\140511620.6||
(de) The Selling Shareholder has no reason to believe that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j) hereof). This Agreement 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Custody Agreement have been duly executed Prospectus and delivered by the Selling Shareholder and each such agreement is a legalhas no knowledge of any material fact, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and condition or information not disclosed in the Registration Statement (including Time of Sale Prospectus or the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach ofProspectus that has had, or default or Repayment Event undermay have, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein)Company and its subsidiaries, nor will such action result in any violation of 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 taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or any respective properties, assets or operations;its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(gi) Neither the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 case 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 (v) 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(g) are limited to statements or omissions made in reliance upon information relating to the extent, but only Selling Shareholder furnished to the extent, that such untrue statement or omission was made Company in writing by the Selling Shareholder expressly for use in the Registration Statement, any Preliminary the Time of Sale Prospectus, the Prospectus or any amendment amendments or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;supplements thereto.
(hg) (i) The Selling Shareholder has no reason to believe is not:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the representations 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 warranties the non-government controlled areas of the Company set forth in Section 3 are not true Kherson and correct in all material respects;Zaporizhzhia regions of Ukraine, Cuba, Iran, Syria, and North Korea).
(i) The Selling Shareholder will deliver not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (any subsidiary, joint venture partner or other applicable Form W-8;Person:
(jA) Certificates to fund or facilitate any activities or business of or with any Person or in negotiable form representing all 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 Shares 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 Selling Shareholder Option Shares to be sold by time of the Selling Shareholder have been placed in custody under a Custody Agreement, in dealing or transaction is or was the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");subject of Sanctions.
(ka) The Selling Shareholder is has not subject 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 or directive ofto influence official action, or party to any agreement withperson 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 regulatory agency having jurisdiction 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 him;
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject Anti-Money Laundering Laws is pending or, 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 best knowledge of the Selling Shareholder, threatened.
(h) The Selling Shareholder hereunder shall represents and warrants that it is not be terminated by operation of law, whether by the death or incapacity (i) an employee benefit plan subject to Title I of the Selling Shareholder orEmployee Retirement Income Security Act of 1974, in as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the case Internal Revenue Code of 1986, as amended or (iii) an estate or trust, by the death or incapacity entity deemed to hold “plan assets” of any executor such plan or trustee or the termination account under Section 3(42) of such estate or trustERISA, 29 C.F.R. 2510.3-101, 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 such executor or trustee 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 eventotherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power this Agreement, the Custody Agreement signed by the Selling Shareholder and authority ____________, as Custodian, relating to enter into this Agreement and to sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the "CUSTODY AGREEMENT") and upon the delivery Power of and payment for such Shares on each Applicable Closing Date hereunder, Attorney appointing certain individuals as the several Underwriters will acquire valid and unencumbered title Selling Shareholder's attorneys-in-fact to the Shares extent set forth therein, relating to be delivered the transactions contemplated hereby and by the Registration Statement (the "POWER OF ATTORNEY") will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement 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 offering, issuance or sale of the Shares.
(c) The Selling Shareholder Shares hereunder or has, and on the consummation of Closing Date will have, valid title to the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;by the Selling Shareholder 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.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, are valid and binding agreement agreements of the Selling Shareholder;.
(e) The execution, Upon delivery and performance of this Agreement and the consummation of the transactions contemplated Shares to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to this Agreement, the several Underwriters will acquire such Shares free of any contract, indenture, mortgage, deed adverse claim thereto (within the meaning of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any Section 8-102 of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated hereinUCC), nor will such action result in any violation of 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;.
(f) The information under the caption "The Selling Shareholder" as well as any other information provided by the Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate or the sale or resale of the Shares;
Underwriters in writing expressly for use in (gi) Neither the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to and (ii) the extentProspectus, but only to the extentdoes not contain and, that such as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertainingexcept, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(g) do not true and correct in all material respects;
(i) The Selling Shareholder will deliver apply to you prior to statements or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, omissions in the form heretofore Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 expressly 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 such executor or trustee 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 eventuse therein.
Appears in 1 contract
Sources: Underwriting Agreement (Renaissancere Holdings LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representshereby represents and warrants to each Underwriter on the date hereof (except as otherwise set forth herein), warrants and covenants, solely with respect shall be deemed to himself represent and warrant to each Underwriter on the Closing Date and the number of 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 (the "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 Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and 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 delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). b. This Agreement and the Custody Agreement Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, this Agreement and the Power of Attorney constitute the valid and binding agreement agreements of the Selling Shareholder;
(e) The executionShareholder enforceable against the Selling Shareholder in accordance with their respective terms, delivery except to the extent that the enforceability of the 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 by this Agreement herein and therein will not result in a breach or violation of any of the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesterms or provisions of, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractstatute, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 voting 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 such executor or trustee 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 1 contract
Sources: Underwriting Agreement (Inspire Insurance Solutions Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself the several Underwriters and the number of Selling Shareholder Shares Company, and shall be deemed to represent and warrant to the several Underwriters and the Selling Shareholder Option Shares set forth opposite his name Company on Schedule I heretothe First Closing Date, to each Underwriter that:
(a) The Selling Shareholder has valid duly executed a durable power of attorney and unencumbered title to 2,300,000 shares custody agreement ("Durable Power of Class A Common Stock 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 and naming the Company as custodian ("Custodian") of the Company, that are convertible into 2,300,000 SharesShares of the Selling Shareholder for the purpose of selling such Shares to the Underwriters on the First Closing Date and receiving payment therefor.
(b) Such All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Shareholder of this Agreement, the Durable Power of Attorney and the Custody Agreement, and for the sale and delivery of the Shares to be sold by the Selling Shareholder hereunder, as set forth on Schedule I annexed hereto, have been obtained. The Selling Shareholder has, and at the time of delivery thereof hereunder the Selling Shareholder will have, good and valid and unencumbered title to the Shares on each Applicable Closing Date, proposed to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security 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. 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 the such Shares to be delivered hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights, other than any created by the Selling Shareholder on such Applicable Closing Date hereunder; and upon Durable Power of Attorney, the Custody Agreement or this Agreement for the benefit of the Underwriters. Upon delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire good and valid title thereto, free and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Dateclear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the The Selling Shareholder of his obligations hereunderhas not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other material in connection with the offering, issuance or offering and 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof)Shares. This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted 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;.
(gd) Neither the Registration StatementThe execution, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon delivery and in conformity with written information furnished to the Company performance by the Selling Shareholder pertainingof 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 suchattorney-in-fact by the Selling Shareholder for the purpose of entering into and carrying out this Agreement, for use therein;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.
(he) 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 no reason deposited in custody, under the Durable Power of Attorney and the Custody Agreement, certificates in negotiable form for the 450,000 Shares to believe that be sold hereunder by the representations and warranties Selling Shareholder for the purpose of the Company set forth in Section 3 are not true and correct in all material respects;
(i) further delivery pursuant to this Agreement. The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all agrees that the Shares of the Selling Shareholder Shares and on deposit with the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 Custodian are subject to the interests of the Underwriters hereunder Company and the Underwriters, that the arrangements made by the Selling Shareholder for such custody 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 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 death dissolution, winding up or incapacity other event affecting the legal life 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 corporationShareholder, or by the occurrence of any other event; if . If the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, wound up or if any such partnership or corporation should be dissolved, or if any other such event should occur, occur before the delivery of the Shares hereunder, the certificates representing for Shares then on deposit with the Custodian shall, to the extent the Shares shall are purchased by the Underwriters, be delivered by or on behalf of the Selling Shareholder Custodian in accordance with the terms and conditions of this Agreement Agreement, the Durable Power of Attorney and the Custody Agreement and shall be as valid as if such death, incapacity, terminationwinding 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 against delivery thereof and otherwise to act on behalf of the Selling Shareholder.
(g) Insofar as it relates to the Selling Shareholder, each Preliminary Prospectus, as of its date, has conformed in all material respects with the requirements of the Act and, as of its date, has not included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and on the effective date of the Registration Statement and at all times subsequent thereto up to the First Closing Date, (i) the Registration Statement and the Prospectus, as they relate to the Selling Shareholder, did or will conform to the requirements of the Act, and (ii) neither the Registration Statement nor the Prospectus as it relates to the Selling Shareholder did or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not 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 delivered to the Representatives was, as of the date of such deathquestionnaire, incapacityand is, terminationas of the date of this Agreement, dissolution true and correct. A certificate signed by or other eventon behalf of the Selling Shareholder as such and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Selling Shareholder to the Underwriters as to the matters covered thereby. A certificate delivered by or on behalf of the Selling Shareholder to counsel for the Selling Shareholder for purposes of enabling such counsel to render the opinion referred in Section 10(e) will also be furnished to the Representatives and counsel for the Underwriters 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, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 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, agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement 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 Shares or (B) have already been obtained.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered 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 Applicable Closing DateUnderwriter 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 registry in accordance with its certificate of 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.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(de) The Selling Shareholder has delivered to the legal right, power and all authorizations and approvals required by law to enter into Representatives an executed lock-up agreement in substantially the Custody Agreement form attached hereto as Exhibit A (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;“Lock-up Agreement”).1
(f) The Selling Shareholder has not taken no reason to believe that the representations and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security warranties of the Company to facilitate the sale or resale of the Shares;
(g) Neither 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 Preliminary Prospectusmaterial 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 amendment information concerning the Company or supplement thereto contains 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 omits omit to state therein 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 case sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 5), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made 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 (v) 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, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus or based upon information relating to any amendment or supplement thereto in reliance upon and in conformity with written information Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(i) None of the Selling Shareholder pertainingor, as suchto the knowledge of the Selling Shareholder, for use therein;any employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(hA) 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) The Selling Shareholder has no reason to believe 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 representations and warranties time of the Company set forth 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 Section 3 are 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 true and correct use, directly or indirectly, the proceeds of the offering in all material respects;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 anti-corruption laws applicable to the Selling Shareholder.
(i) The Selling Shareholder will deliver represents and warrants that it is not (i) an employee benefit plan subject to you prior Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to or at each Applicable Closing Date a properly completed and executed Section 4975 of the Internal Revenue Service Form W-8BEN Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or other applicable Form W-8;account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody AgreementNo stamp, in the form heretofore furnished to you (the "CUSTODY AGREEMENT")documentary, duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order issuance, registration, transfer withholding, capital gains, income or directive of, other similar taxes 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 duties 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 such executor or trustee 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 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 accordance with the terms manner contemplated herein, provided that all electronic records and conditions 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 and in any of 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 eventSpecified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 certificate of 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 and unencumbered 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriter, 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 Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Applicable Closing DateShares), (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 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 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 registry in accordance with its certificate of 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 account of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(de) The Selling Shareholder has no reason to believe (without independent investigation) that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j1 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) hereof). This Agreement 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 Custody Agreement have been duly executed 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 delivered warranties set forth in paragraph 2(f) apply only to statements or omissions in or incorporated by reference in the Registration Statement or the Prospectus furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use therein. The Company and each such agreement is a legalthe 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 Statement and the Prospectus.
(g) There are no legal or governmental proceedings pending or, valid and binding agreement to the knowledge of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, threatened to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets properties of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances other than proceedings that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation power or ability of 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 to perform its obligations under this Agreement or any respective properties, assets or operations;to consummate the transactions contemplated by the Prospectus.
(fh) The Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to to, or which has constituted might reasonably be expected to, cause or result in stabilization or nor manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case Shares pursuant to the extentdistribution contemplated by this Agreement, but only to and other than as permitted by the extentSecurities Act, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that not distributed and will not distribute any prospectus or other offering material in connection with the representations offering and warranties sale of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 eventShares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Offered Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder are, and on such Applicable 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 interests and claims whatsoever, with full right, power right and authority to enter into this Agreement and to sell, assign, transfer sell and deliver the Shares to be delivered by the such Selling Shareholder on such Applicable Closing Date hereunderOffered Shares; and upon the delivery of and payment for such Selling Shareholder Offered Shares on each Applicable Closing Date hereunderas herein contemplated the Underwriter will receive valid, the several Underwriters will acquire valid marketable title thereto, free and unencumbered title clear of all liens, encumbrances, equities, security interests and claims, except any that may be created by their own action.
(b) All information furnished to the Shares to be delivered Company in writing by the Selling Shareholder on for use in, or in connection with the preparation of, the Registration Statement or the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Selling Shareholder hereby furnishes to the Company for such Applicable Closing Dateuse the statements with respect to the Selling Shareholder under "Principal and Selling Shareholder" in the Prospectus and in Item 26 for Form SB-2 of the Registration Statement.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted might reasonably be expected to cause or result in stabilization or manipulation of the price of any security the Common Shares of the Company in connection with, or to facilitate facilitate, the sale or resale distribution of the Shares;.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(hd) The Selling Shareholder has no reason duly authorized the Company to believe that act as attorney-in-fact (the representations and warranties "Attorney-in-Fact") for the Selling Shareholder pursuant to a power of attorney executed by the Selling Shareholder (and, by the execution by it of this Agreement on behalf of the Company set forth in Section 3 are not true Selling Shareholder, the Attorney-in-Fact represents and correct in all material respects;
(iwarrants that it has been duly appointed as Attorney-in-Fact by the Selling Shareholder) The Selling Shareholder will deliver pursuant to you prior to or 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 negotiable form representing all which the Attorney-in-Fact is authorized on behalf of the Selling Shareholder Shares to execute this Agreement and any other documents necessary or desirable in connection with the sale of the Selling Shareholder Option Offered Shares, to make delivery of the certificates for 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 have been placed in custody under a Custody Agreement, in hereunder to be delivered to the form heretofore furnished Attorney-in-Fact with irrevocable authority to you (the "CUSTODY AGREEMENT"), duly executed purchase all requisite stock transfer tax stamps and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order hold such certificate 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 delivery, or for exchange for other certificates in proper form for delivery, pursuant to the interests of provisions hereof on the Underwriters hereunder Closing Date.
(e) This Agreement constitutes the valid and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations binding obligation of the Selling Shareholder hereunder shall not be terminated by operation of lawShareholder, 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 such executor or trustee 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 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 terms rights of creditors generally and conditions 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 Custody 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 Prospectus. Any certificate signed by the Selling Shareholder and delivered to the Underwriter or to Underwriter's counsel shall be deemed to be a representation and warranty by the Selling Shareholder as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not to the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventmatters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (On Stage Entertainment Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 organizational documents of the Selling Shareholder, (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 (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 as will have been obtained on or prior to the time of delivery of the Shares pursuant to Section 5.
(d) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered 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 on each Applicable Closing Date, to be delivered sold by the such Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed or a security entitlement in custody under a Custody Agreement, in respect of such Shares.
(e) Upon payment for the form heretofore furnished Shares to you (the "CUSTODY AGREEMENT"), duly executed and delivered be sold by the Selling Shareholder pursuant to American Stock Transfer 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 registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as custodian a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the "CUSTODIAN");accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(kf) The Neither the Selling Shareholder nor, to the knowledge of the Selling Shareholder, any director or officer or employee or affiliate of such Selling Shareholder is not currently 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 Sanctions; and the Selling Shareholder under will not, directly or indirectly, use the Custody Agreement are subject to the interests proceeds of the Underwriters hereunder and offering of the arrangements made Shares sold by the Selling Shareholder hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for such custody are to that extent irrevocable; the obligations purpose of financing 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 activities 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 such executor or trustee 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 eventperson 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, hereby represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, as the case may be, that:
(a) The Selling Shareholder has 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 and unencumbered title to 2,300,000 shares such Shares, free of Class A Common Stock of the Companyall restrictions on transfer, that are convertible into 2,300,000 Sharesliens, encumbrances, security interests, equities and claims whatsoever.
(b) Such The Selling Shareholder has, and on the Closing Date and the Additional Closing Date, as the case may be, will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full legal right, power and authority authority, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateAgreement.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 This Agreement has been already obtained or may be required under the Act or the Rules and Regulationsduly authorized, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, 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.
(d) None of the sale of the Shares by the Selling Shareholder;
(e) The , the execution, delivery and or performance of this Agreement and the 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 Sharesof this Agreement, if applicable) and the compliance by the Selling Shareholder with his obligations all the provisions hereof and thereof or the consummation by the Selling Shareholder of the transactions contemplated hereby and thereby (i) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body or administrative agency or other governmental body, agency or official (except such as may be required under this Agreement and the Custody Agreementsecurities or Blue Sky laws of the various states), do not and will not, whether (ii) conflicts with or without the giving of notice or lapse of time or both, will conflict with or constitutes or will constitute a breach of, of or a default or Repayment Event under, or result in the creation or imposition of under any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractagreement, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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 propertiesproperty of such Selling Shareholder is bound or (iii) violates any statute, assets law, regulation, ruling, filing, judgment, injunction, order or operations;decree applicable to the Selling Shareholder or any property of the Selling Shareholder.
(e) The information in the 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) The 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 which is that constituted, or any action designed to, or that might reasonably be expected to cause or which has constituted result in or constitute, under the Act or otherwise, stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Shares;.
(g) Neither The Selling Shareholder has, and upon delivery of and payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, good and 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 hereunder on such Closing Date, free and clear of all liens, encumbrances, equities or claims. Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by 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). For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (A) 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 registry in accordance with its articles of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) 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, any Preliminary Prospectusor the most recent post-effective amendment thereto, if any, was declared effective by the Commission, the Prospectus or 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 amendment or supplement thereto contains any road show written communication that is a free writing prospectus under Rule 433), when considered together with the Time of Sale Information, did not as of the Applicable Time, contain an untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, in each case to ; provided that the extent, but foregoing representation and warranty shall apply only to the extent, extent that such untrue statement any statements in or omission was made in omissions from the Registration Statement, any Preliminary the Prospectus, the Prospectus Time of Sale Information or any amendment Issuer Free Writing Prospectus, as applicable, are statements or supplement thereto in reliance upon and in conformity with written information furnished to the Company by omissions concerning the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe it being understood that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to any statements or 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 negotiable form representing all of omissions concerning the Selling Shareholder Shares and for the purposes of this Section 6.2(j) refers only to information concerning the Selling Shareholder Option Shares 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 placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered fully paid by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive ofShareholder, or party to any agreement and all laws imposing such taxes will have been complied 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 such executor or trustee 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 1 contract
Sources: Underwriting Agreement (American Physicians Service Group Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to the several Underwriters, warrants as of the date hereof and covenantsas of each Closing Date, solely and agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I heretoseveral Underwriters, to each Underwriter that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 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, agency or 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 under the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Securities.
(c) The Selling Shareholder is, and immediately prior to each Closing Date, the Selling Shareholder will havebe, valid and unencumbered title to the Shares on each Applicable Closing Date, record owner of the Securities to be delivered by the Selling Shareholder on hereunder at such Applicable Closing Date Date, and the Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, assign and transfer and deliver the Ordinary Shares to be delivered by the Selling Shareholder on 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 Applicable Selling Shareholder at such Closing Date hereunder; and upon the Date.
(d) Upon delivery of and payment for such Shares on the Securities to the Selling Shareholder at each Applicable Closing Date hereunder, the several Underwriters will acquire valid title to, including a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Securities free and unencumbered clear of all liens, encumbrances, equities or claims, and upon delivery of such Securities and payment therefor pursuant hereto, valid title to such Securities, free and clear of all liens, encumbrances, equities or claims, will pass to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateUnderwriters.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The executionSelling Shareholder will, delivery and performance prior to each Closing Date, deposit the Ordinary Shares to be represented by the Offered ADSs with the Depositary in accordance with the provisions of this the Deposit Agreement and otherwise complies with the consummation of the transactions contemplated by this Deposit Agreement and in the Registration Statement so that ADSs will be executed (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesand, if applicable, countersigned) and compliance issued by the Selling Shareholder with his obligations under this Agreement Depositary against receipt of such Ordinary Shares and delivered to 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for Underwriters at such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;Closing Date.
(f) The Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which 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 Shares;Securities.
(g) Neither 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, any Preliminary Prospectus, the General Disclosure Package or the Prospectus to sell its Securities pursuant to this Agreement.
(i) (i) Each part of the Registration Statement, when such part became effective, did not contain, and, as amended or any supplemented, if applicable, did not or will not, as the case may be, contain at the time of such amendment or supplement thereto contains supplement, any untrue statement of a material fact or omits omit to state therein 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 (iii) the Prospectus does not or will not, as the case may be, as of the date of the Prospectus and as at each case 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 light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 3(i) are limited only to information furnished to the extent, but only to Company in writing by the extent, that such untrue statement or omission was made Selling Shareholder expressly for use in the Registration Statement, any Preliminary Prospectusthe General Disclosure Package, the Prospectus or any amendment amendments or supplement thereto in reliance upon supplements thereto, it being understood and in conformity with written agreed that the only such information furnished to the Company by the Selling Shareholder pertainingconsists of Selling Shareholder Information. Each Underwriter, as such, 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 therein;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.
(hi) 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 has no reason to believe 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 representations and warranties time of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver dealing or transaction is or was the subject of Sanctions, except to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other the extent permitted by applicable Form W-8;
(j) Certificates in negotiable form representing all of law. It is understood that the Selling Shareholder Shares does not make or repeat, as appropriate, the representation and warranty contained in this Section 3(j)(ii) and/or the Selling Shareholder Option Shares to be sold representation and warranty given by the Selling Shareholder have been placed in custody under Section 3(j)(ii) to the extent that such provisions are or would be unenforceable or would result in a Custody Agreement, 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 form heretofore furnished United Kingdom. The representations and warranties given in this clause are only sought by and given to you 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 (the "CUSTODY AGREEMENT"Außenwirtschaftsverordnung – AWV), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");.
(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 not 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 order law or directive of, or party to regulation implementing the EU Blocking Regulation in any agreement with, any regulatory agency having jurisdiction with respect to him;member state of the European Union.
(l) The Shares represented by For the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject to the interests past five years, none 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 such executor or trustee should die or become incapacitatedof its subsidiaries, or if any such estate or trust should be terminateddirector, officer, or if employee thereof, or, to the Selling Shareholder’s knowledge, any such partnership agent or corporation should be dissolvedrepresentative 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 if authorization of any other such event should occurdirect or indirect unlawful payment or benefit, before the delivery to any foreign or domestic government official or employee, including of the Shares hereunderany government-owned or controlled entity or of a public international organization, certificates representing the Shares shall be delivered by 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 accordance 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 terms Anti-Corruption Laws, the Anti-Money Laundering Laws and conditions Sanctions.
(o) The Selling Shareholder is a “United States person” within the meaning of this Agreement 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 Custody Agreement 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 shall be as valid as if such death, incapacity, termination, dissolution (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 event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.than those listed on Schedule C.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power and authority to enter into 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 sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the "Custody Agreement") and upon the delivery consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the Last Will and payment for such Shares on each Applicable Closing Date hereunderTestament of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by which the Selling Shareholder on such Applicable Closing Date.
(c) No filing withwas established, or authorizationany 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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder under this Agreement or the consummation of the transactions contemplated by this Custody Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution by the Underwriters sale of the Shares.
(c) The Selling Shareholder Shares has, and on the Selling Shareholder Option 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 in respect of, the Shares to be sold hereby;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 or a security entitlement in respect of such Shares.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have has been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and the consummation Delivery 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, if applicable) and compliance to be sold by the Selling Shareholder with his obligations under and payment therefor pursuant to this Agreement will pass valid title to such Shares, free 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 breach of, or default or Repayment Event under, or result in the creation or imposition clear of any lien, charge or encumbrance upon any property or assets adverse claim within the meaning of Section 8-102 of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentNew York Uniform Commercial Code, to which the Selling Shareholder is a party or by which he may be bound, or to which any each Underwriter who has purchased such Shares without notice of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material an adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;claim.
(f) 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 the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;.
(gi) Neither To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case to all material respects with the extentSecurities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, but only to the extentas amended or supplemented, that such if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(g) do not true and correct apply to statements or omissions in all material respects;the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(ih) The the statements in the Prospectus under the captions "Summary--▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Testamentary Trust", "▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Testamentary Trust," and "Selling Shareholder will deliver to you prior to or 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 negotiable form representing all Shareholder" insofar as such statements constitute summaries of the Selling Shareholder Shares and legal matters, documents or proceedings referred to therein, fairly present the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 information called for with respect to him;
(l) The Shares represented by such legal matters, documents and proceedings and fairly summarize the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject matters referred 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 such executor or trustee 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 eventtherein.
Appears in 1 contract
Sources: Underwriting Agreement (Dupont Alfred I Testamentary Trust)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, hereby represents and warrants to the Company and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter thatas follows:
(a) The Selling Shareholder has valid 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 unencumbered title to 2,300,000 shares of Class A Common Stock of an agreement dated on or about the Company, that are convertible into 2,300,000 Sharesdate hereof between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) Such The Selling Shareholder will have, valid and unencumbered title has granted an irrevocable power of attorney (the "Power of Attorney") to the Shares on each Applicable Closing DateCompany 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 delivered sold by the Selling Shareholder on such Applicable Closing Date and 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 Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Datepursuant hereto.
(c) No filing withThis Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, approvalexecution and delivery by the other parties hereto, consenteach constitutes the valid and legally binding agreement of the Selling Shareholder, licenseenforceable against the Selling Shareholder in accordance with its terms, orderexcept as the enforceability thereof may be limited by bankruptcy, registrationinsolvency, qualification reorganization, moratorium or decree of, any court or governmental authority or agency is necessary or required for other similar laws affecting the enforcement of creditors' rights generally and by general equitable principals.
(d) The execution and delivery by the Selling Shareholder of this Agreement and the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement (i) will not contravene any provision of applicable law, statute, rule or 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, (ii) does not require on the part of the Selling Shareholder any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states or other jurisdiction in connection with the offering, issuance or offer and sale of the Selling Shareholder Shares hereunder which have been or the consummation of the transactions contemplated by will be effected in accordance with this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(diii) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do will not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or 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 contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he the Selling Shareholder may be bound, bound or to which any of the property or assets of the Selling Shareholder is subject subject.
(except for such conflictse) The Selling Shareholder has, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect and on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, valid and marketable title to the Shares to be sold by the Selling Shareholder on such Closing Date, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any respective propertiesrestriction on transfer, assets or operations;except as otherwise described in the Registration Statement and Prospectus.
(f) The Selling Shareholder has, and 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 sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder on such Closing Date in the manner provided by this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder on any Closing Date pursuant to this Agreement, the several Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to the Selling Shareholder furnished in writing by the Selling Shareholder expressly for use in the Registration Statement and Prospectus is, and on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will be, true, correct, and complete, and does not, and on each Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(i) The Selling Shareholder has reviewed the Registration Statement and Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or 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, misleading.
(j) 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 the Subsidiary which is not set forth in the Prospectus.
(k) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted 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;.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(hl) The Selling Shareholder has no reason to believe actual knowledge that the representations and warranties any representation or warranty of the Company set forth in Section 3 are not true and correct 4 above is untrue or inaccurate in all any material respects;respect.
(im) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed representations and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all warranties of the Selling Shareholder Shares in the Custody Agreement are, and the Selling Shareholder Option on each Closing Date on which Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished pursuant to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 will be, true 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 eventcorrect.
Appears in 1 contract
Sources: Underwriting Agreement (Talx Corp)
Representations and Warranties of the Selling Shareholder. The Each Selling Shareholder representsShareholder, severally and not jointly, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Such Selling Shareholder has 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 and unencumbered title to 2,300,000 shares 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 Class A Common Stock of the Companyany security interests, that are convertible into 2,300,000 Sharesliens, encumbrances, equities or claims.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and has full right, power and authority 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 sellperform its obligations hereunder and thereunder, assign, transfer and deliver each of this Agreement and the Shares to be Brokerage Agreements has been duly executed and delivered by the Selling Shareholder on such Applicable Closing Date hereunderShareholder; and upon such Selling Shareholder has complied with the delivery requirements of Russian law and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title regulations applicable to the offering of the Shares to be delivered by in the form of preferred shares in the Russian Federation in accordance with the Brokerage Agreements that the Selling Shareholder on is a party to; and in deciding to sell the Shares or ADSs to be sold by him or it hereunder, such Applicable Closing DateSelling 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.
(c) No 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 such Selling Shareholder of this Agreement and the performance by such Selling Shareholder of its obligations hereunder and under the Brokerage Agreements, (i) do not require any consent, approval, authorization or order of, or filing with, any governmental agency or authorization, approval, consent, license, order, registration, qualification body or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 have been already obtained or and such as may be required under the Act securities or the Rules and Regulations, state securities “blue sky” laws or the bylaws and rules of the NASD any jurisdiction in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and ADSs in the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions manner contemplated by this Agreement herein and in the Registration Statement Prospectus and (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicableii) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do will not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute result in a breach or violation of any of the terms and provisions of, or constitute a default or Repayment Event under, (A) any statute, or result in the creation any rule, regulation or imposition order of any lien, charge governmental agency or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease body or any other agreements court applicable to such Selling Shareholder, or instrument, (B) any agreement or instrument to which the such Selling Shareholder is a party or by which he may be bound, such Selling Shareholder is bound or to which any of their respective properties is subject.
(d) The Selling Shareholders have not made any offer of Shares or ADSs to, nor solicited any offers to buy Shares or ADSs from, any persons other than the property Underwriters and as required under any applicable laws and regulations.
(e) No stamp or assets other issuance or transfer taxes or duties and no withholding or other taxes are payable by or on behalf of the Selling Shareholder is subject Underwriters (except for such conflictsany income, breachescapital gains, defaults, liens, charges withholding or encumbrances other taxes imposed upon the Underwriters that would not have been imposed but for a material adverse effect on connection between the transactions Underwriters and the jurisdiction imposing such taxes, other than a connection arising as a result of the transaction contemplated herein), nor will by this Agreement) in connection with (i) the sale and delivery by such action result in any violation of 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 of the Shares to be sold by him, her or any respective propertiesit, assets (ii) the deposit with the Depositary of the Shares to be sold by such Selling Shareholder against the issuance of ADRs evidencing ADSs or operations;(iii) the sale and delivery by the Underwriters of such Shares or ADSs to the initial purchasers thereof in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(f) The Selling Shareholder has not taken From the date and will not take, directly time at which the Registration Statement becomes effective and at all times subsequent thereto through the latest Closing Date or indirectly, any action which is designed to or which has constituted stabilization or manipulation the termination of the price of any security of the Company to facilitate the sale or resale offering of the Shares;
(g) Neither , the Registration Statement, any Preliminary Statement and Prospectus, the Prospectus and any supplements or any amendment or supplement thereto contains any amendments thereto, in each case, as relate to such Selling Shareholder, will not contain an untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) The execution and delivery by each Selling Shareholder of each transaction document to which it, in each case 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 extentapplicable laws of any jurisdiction, including, but only to not limited to, those of the extentUnited States of America or the Russian Federation, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, except as such, for use therein;have been obtained.
(h) The Neither the Selling Shareholder Shareholders nor any of its affiliates (as defined in Rule 405 under the Securities Act) has no reason (i) taken, directly or indirectly, any action designed to believe cause or to result in, or that has constituted or might reasonably be expected to constitute, the representations and warranties stabilization or manipulation of the Company set forth 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 Selling 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 Section 3 are not true material compliance with all applicable financial recordkeeping and correct in all material respects;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 proceeding by or before any court or governmental agency, authority 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 Shareholder will deliver 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 you prior to or 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 negotiable form representing all the any of the Selling Shareholder Shares and Shareholders’ knowledge, any agent or representative of the Selling Shareholder Option Shares to be sold Entity, is an individual or entity (“Person”) that is, or is owned or controlled by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");Person that is:
(kA) 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 Shareholder Shareholders represent and covenant that they 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 not or was subject to any order sanctions administered or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented enforced 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 such executor or trustee 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 eventOFAC.
Appears in 1 contract
Sources: Underwriting Agreement (Mechel OAO)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power this Agreement, the Custody Agreement signed by the Selling Shareholder and authority [•], as Custodian, relating to enter into this Agreement and to sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the “Custody Agreement”) and upon the delivery 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 payment for such Shares on each Applicable Closing Date hereunderby the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, the several Underwriters will acquire valid and unencumbered title to memorandum of association, articles of association, certificate of incorporation, by-laws or similar governing documents of the Shares to be delivered by Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any governmental body, agency or court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement 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 offering, issuance or offer and sale of the Shares.
(c) The Selling Shareholder Shares hereunder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the consummation meaning of Section 8-501 of the transactions contemplated by this AgreementNew York Uniform Commercial Code (the “UCC”) in respect of, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;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 the Shares.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, are valid and binding agreement agreements of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and Upon payment for the consummation of the transactions contemplated Shares to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractthis Agreement, indenturedelivery of such Shares, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentas directed by the Underwriters, to which 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 is a party 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 which he may be boundDTC, 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 would not have a material adverse effect in each case on the transactions contemplated herein)Company’s share registry in accordance with its certificate of incorporation, nor will such action result in any violation of any bylaws and applicable law, statute, rule, regulation, judgment, order, writ or decree, (y) DTC will be registered as a “clearing corporation” within the meaning of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Section 8-102 of the Selling Shareholder or any respective properties, assets or operations;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 not taken and will not take, directly or indirectly, any action which is designed delivered to or which has constituted stabilization or manipulation of the price of any security of Representatives an executed lock-up agreement in substantially the Company to facilitate the sale or resale of the Shares;form attached hereto as Exhibit A.
(g) Neither 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 Preliminary Prospectusmaterial 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 amendment information concerning the Company or supplement thereto contains 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) 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 omits omit to state therein 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 case sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 5), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made 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 (vi) 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 Preliminary 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(h) are limited to statements or omissions 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 amendment amendments or supplement supplements thereto in reliance upon and in conformity with written information furnished to (the Company by “Selling Shareholder Information”); it being understood that the Selling Shareholder pertainingInformation shall be limited to the legal name and address of, as suchand the number of shares beneficially owned and offered by, for use therein;
(h) The such Selling Shareholder, and the other information with respect to such Selling Shareholder has no reason to believe that appears under the representations caption “Principal and warranties Selling Stockholders” in the Registration Statement, the Time of Sale Prospectus, and the Company set forth in Section 3 are not true and correct in all material respects;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 deliver not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (any subsidiary, joint venture partner or other applicable Form W-8;Person:
(jA) Certificates to fund or facilitate any activities or business of or with any Person or in negotiable form representing all 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 Shares and 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 Option Shares or of any of its subsidiaries or controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to be sold by 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 been placed in custody under a Custody Agreement, in instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the form heretofore furnished to you representations and warranties contained herein; and (the "CUSTODY AGREEMENT"), duly executed and delivered by 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 American Stock Transfer & Trust Company as custodian (pay, or authorization of the "CUSTODIAN");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 is not subject to 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 order court or directive ofgovernmental agency, authority or party to body or any agreement with, arbitrator involving the Selling Shareholder or any regulatory agency having jurisdiction of its subsidiaries with respect to him;the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement are represents and warrants that it is not (i) an employee benefit plan subject to ERISA, (ii) a plan or account subject to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are Code or (iii) an entity deemed 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 hold “plan assets” of any executor such plan or trustee or the termination account under Section 3(42) of such estate or trustERISA, 29 C.F.R. 2510.3-101, or in the case of a partnership otherwise.
(m) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or corporation, by the dissolution of such partnership other taxes or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee 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 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 accordance with Section 19), and has the terms power to designate, appoint and conditions 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 and in any of 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 eventSpecified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such The deposit of the Underlying Shares by the Selling Shareholder will have, valid and unencumbered title to with the Shares on each Applicable Closing Date, Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power the execution and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered delivery by the Selling Shareholder on such Applicable Closing Date hereunder; of, and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered performance by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withof its obligations under, this Agreement will not contravene any provision of applicable law, or authorizationthe 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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by under this Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution sale of the Securities.
(c) The Selling Shareholder beneficially owns and on the Closing Date will 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 in respect of, the Underlying Shares to be represented by the Underwriters of ADSs to be sold by the Selling Shareholder Shares hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances; and the Selling Shareholder Option 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 sold hereby;delivered by the Selling Shareholder.
(d) The Selling Shareholder has the legal rightright and power, power and all authorizations authorization and approvals approval required by law law, to enter into the Custody Agreement (as defined in Section 4(j) hereof). This this Agreement and to sell, transfer and deliver the Custody Agreement have been duly executed and delivered Securities to be sold by the Selling Shareholder and each or a security entitlement in respect of such agreement is a legal, valid and binding agreement of the Selling Shareholder;Securities.
(e) The ADSs representing the Underlying Shares were deposited in accordance with the provisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of 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 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 and performance or consummation of this Agreement Agreement, (ii) the sale and the consummation delivery of the transactions 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 by this Agreement and 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.
(including the issuance and sale of such h) The Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result Information in the creation Registration Statement or imposition of any lien, charge or encumbrance upon any property or assets amendment thereof constitutes a fair summary of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;matters described therein.
(fi) The Selling Shareholder has not taken the power to submit, and will not takepursuant to Section 19(a) has, directly or indirectlyto the extent permitted by law, any action which is designed legally, validly, effectively and irrevocably submitted, to or which has constituted stabilization or manipulation the jurisdiction of the price 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 security 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 to facilitate the sale or resale of the Shares;
(g) Neither contained in Section 1 are not true and correct, is familiar with the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or any amendment information not disclosed in the Time of Sale Prospectus that has had, or supplement thereto contains 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 omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in (iii) the Registration Statement, any Preliminary 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 (vi) the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertainingdoes not contain and, as suchamended or supplemented, for use 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;
(h) The Selling Shareholder has no reason to believe , in the light of the circumstances under which they were made, not misleading, except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(k) do not true and correct apply to statements or omissions in all material respects;the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all None of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee should die or become incapacitatedof its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or if any such estate other person associated with 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 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 accordance 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 offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the 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 terms representations and conditions 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 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.
(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 Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless courts of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventNorway.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenantsto the Underwriters, solely with respect to himself itself and the number of Selling Shareholder Option Shares to be sold by it, and agrees that:
a) the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has good and valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder hereunder free and clear of all liens, encumbrances or claims, and 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 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 hereunder;
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 Applicable Closing Date and 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 to sell, assign, transfer and deliver the Shares to be delivered by Power of Attorney; the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) 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 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, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do hereby will not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, lease other agreement or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject (subject, nor will such actions result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder; and, except for the registration of the Shares under the Act and such conflictsconsents, breachesapprovals, defaultsauthorizations, liensregistrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Shares by the Underwriters, charges no consent, approval, authorization or encumbrances that order of, or filing or registration with, any such court or governmental agency or body 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 the transactions contemplated hereby, except where such 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 transactions contemplated herein), nor will such action result in any violation ability of 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 to consummate the transactions contemplated hereby;
e) to the extent that any statements or omissions made in the Registration Statement, the Prospectus or any respective propertiesamendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder specifically for use therein, assets the Registration Statement and the Prospectus and any amendments or operations;supplements thereto will not, when they become effective or are filed with the Commission, 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 light of the circumstances under which they were made, not misleading in relation to such written information; and
(f) The the Selling Shareholder has not taken and will not take, directly or indirectly, any action which that is designed to or which 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 to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 1 contract
Sources: Underwriting Agreement (Rli Corp)
Representations and Warranties of the Selling Shareholder. The Selling --------------------------------------------------------- Shareholder represents, hereby represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter thatas follows:
(a) The Selling Shareholder has valid 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 unencumbered title to 2,300,000 shares of Class A Common Stock of an agreement dated June __, 1999 between the Company, that are convertible into 2,300,000 SharesCustodian and the Selling Shareholder (the "Custody Agreement").
(b) Such The Selling Shareholder will have, valid and unencumbered title has granted an irrevocable power of attorney (the "Power of Attorney") to the Shares person named therein, on each Applicable Closing Datebehalf 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 delivered sold by the Selling Shareholder on such Applicable Closing Date and 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 Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Datepursuant hereto.
(c) No filing withThis Agreement, the Custody Agreement 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, approvalexecution and delivery by the other parties hereto or thereto, consenteach constitutes the valid and legally binding agreement of the Selling Shareholder, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for enforceable against the Selling Shareholder in accordance with its terms.
(d) The execution and delivery by the Selling Shareholder of this Agreement and the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement (i) will not contravene any provision of 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, (ii) does not require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states in connection with the offering, issuance or offer and sale of the Selling Shareholder Shares hereunder which have been or the consummation of the transactions contemplated by will be effected in accordance with this Agreement, except such as has been already obtained (iii) does not and will not violate any statute, law, regulation or may be required under the Act filing or the Rules and Regulationsjudgment, state securities laws injunction, order or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares decree applicable to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(eiv) The execution, delivery and performance of this Agreement and the 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, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do will not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or 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 contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he the Selling Shareholder may be bound, bound or to which any of the property or assets of the Selling Shareholder is subject subject.
(except for such conflictse) The Selling Shareholder has, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect and on the transactions contemplated herein)Firm Shares Closing Date will have, nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over valid and marketable title to the Shares to be sold by the Selling Shareholder free and clear of any lien, claim, security interest or other encumbrance, including any respective properties, assets or operations;restriction on transfer.
(f) The Selling Shareholder has not taken has, and on the Firm Shares Closing Date will not takehave, directly or indirectlyfull legal right, power and authorization, and any action which is designed approval required by law, to or which has constituted stabilization or manipulation of sell, assign, transfer and deliver the price of any security of Shares to be sold by the Company to facilitate Selling Shareholder in the sale or resale of the Shares;manner provided by this Agreement.
(g) Neither Upon delivery of and payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, the several Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to the Selling Shareholder furnished in writing by the Selling Shareholder expressly for use in the Registration StatementStatement and Prospectus is, any Preliminary Prospectusand on each Closing Date will be, the Prospectus or any amendment or supplement thereto contains true, correct and complete, and does not, and on each Closing Date will not, contain any untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein such information not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;.
(hi) The Selling Shareholder has no reason to believe that the representations and warranties any representation or warranty of the Company set forth in Section 3 are not true and correct 4 above is untrue or inaccurate in all any material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;respect.
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares The representations and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 warranties of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement are, and shall be as valid as if such deathon each Closing Date will be, 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 eventtrue and correct.
Appears in 1 contract
Sources: Underwriting Agreement (Financial Institutions Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such The Intercompany Agreements have been duly authorized by the Selling Shareholder will haveand, valid when executed and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date Shareholder, will constitute, valid and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by binding agreements of the Selling Shareholder on such Applicable Closing Date hereunder; enforceable in accordance with their terms except as enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and upon the delivery availability of equitable remedies may be limited by equitable principles of general applicability and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title except to the Shares extent that the provisions relating to indemnification and contribution contained in the Registration Rights Agreement may be delivered by the Selling Shareholder on such Applicable Closing Datedeemed unenforceable.
(c) No filing withThe 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 authorizationby-laws of the Selling Shareholder, 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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement 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 offering, issuance or offer and 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;Shares.
(d) The Selling Shareholder has has, and on the Closing Date will have, valid title to the Shares to be sold by the Selling Shareholder and the legal rightright and power, power and all authorizations authorization and approvals approval required by law law, to enter into the Custody Agreement (as defined in Section 4(j) hereof). This this Agreement and the Custody Agreement have Power of Attorney and the Intercompany Agreements and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder.
(e) The Power of Attorney has been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;.
(ef) The execution, delivery and performance of this Agreement and the consummation Delivery of the transactions contemplated Shares to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to this Agreement will pass title to the Shares free and clear of any contractsecurity interests, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaultsclaims, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;equities and other encumbrances.
(fi) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case to all material respects with the extentSecurities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, but only to the extentas amended or supplemented, that such if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe except that the representations and warranties of the Company set forth in Section 3 are not true and correct this paragraph 2(g) shall apply only to statements or omissions in all material respects;
(i) The Selling Shareholder will deliver the Registration Statement or the Prospectus based upon information relating to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and furnished to the Selling Shareholder Option Shares to be sold Company in writing by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 expressly 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 such executor or trustee 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 eventuse therein.
Appears in 1 contract
Sources: Underwriting Agreement (Depuy Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representshereby represents and warrants to each Underwriter on the date hereof (except as otherwise set forth herein), warrants and covenants, solely with respect shall be deemed to himself represent and warrant to each Underwriter on the Closing Date and the number of 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 (including 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 Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and 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 delivered sold by the such Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). b. This Agreement and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, this Agreement and the Custody Agreement constitute the valid and binding agreement agreements of the Selling Shareholder;
(e) The executionShareholder enforceable against the Selling Shareholder in accordance with their respective terms, delivery and 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 by this Agreement herein and therein will not result in a breach or violation of any of the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesterms or provisions of, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit voting trust agreement, notenote agreement, lease or any other agreements agreement or instrument, instrument to which the Selling Shareholder is a party or by which he may be the Selling Shareholder or the Selling Shareholder's properties are bound, or to which under any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ rule or decree, regulation of any government, government instrumentality court or court, domestic governmental agency or foreign, having jurisdiction over 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 (and the Additional Closing Date, if any) the Selling Shareholder will have, good and marketable title to the Shares to be sold by the Selling Shareholder hereunder, free and clear of all liens, encumbrances, equities, shareholder agreements, voting trusts, adverse claims or other claims of any respective propertiesnature whatsoever, assets 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 operations;other claims of any nature whatsoever (other than those arising by or through the Underwriters), will pass to the several Underwriters.
(f) 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 taken, and will not take, directly or indirectly, any action which is designed to or which has constituted nor 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;Shares or otherwise.
(g) Neither f. No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by the Selling Shareholder of 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 under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares to be sold by the Selling Shareholder.
g. The Selling Shareholder is familiar with the Registration Statement, the Prepricing Prospectus and the Prospectus and has no knowledge of any Preliminary Prospectusmaterial 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 the sale of the Shares proposed to be sold by the Selling Shareholder is not prompted by any such knowledge.
h. All information with respect to the Selling Shareholder contained in the Registration Statement, the Prepricing Prospectus and the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto thereto) complied and will comply in all material respects with all applicable provisions of the Act, contains any and will contain all statements required to be stated therein in accordance with the Act, and does not and will not contain an untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
i. To the best knowledge of such Selling Shareholder, 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth contained in Section 3 6 hereof are not true and correct in all material respects;correct.
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed j. Other than as permitted by the Act and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Rules and Regulations, the Selling Shareholder Shares has not distributed and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is will not subject to distribute 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 such executor or trustee 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.Prepricing Prospectus,
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder has valid all requisite power and unencumbered title authority to 2,300,000 shares of Class A Common Stock execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered performance by the Selling Shareholder on such Applicable Closing Date hereunder; and 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 other constitutive documents of the Selling Shareholder, (iii) any agreement or other instrument binding upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on 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 clause (iii) where such Applicable Closing Date.
(c) contravention would not impair in any material respects the consummation of the Selling Shareholder’s obligations under this Agreement. No filing with, or authorizationconsent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by under this Agreement, except such as has been already obtained or may be required under the Exchange Act and the securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states of the United States in connection with the purchase offer and distribution by the Underwriters 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 in respect of, the Shares free and clear of all security interests, claims, liens, equities or other encumbrances and the Selling Shareholder Option 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 hereby;by the Selling Shareholder or a security entitlement in respect of the Shares.
(d) The Selling Shareholder has Upon payment for the legal right, power and all authorizations and approvals required by law Shares to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered 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 each the crediting of such agreement is a legal, valid and binding agreement 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), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (iii) 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;Shareholder may assume that when such payment, delivery and crediting occur, (A) 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 registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The execution, delivery and performance Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of this Agreement Sale Prospectus and the consummation of the transactions contemplated by Prospectus to sell its Shares pursuant to this Agreement and in the Agreement.
(i) The Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option SharesStatement, when it became effective, did not contain and, as amended or supplemented, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains contain any untrue statement of a material fact or omits omit to state therein 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 case 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 extentstatements therein, but in the light of the circumstances under which they were made, not misleading and (v) 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 (g) apply only to the extent, that such untrue statement statements or omission was made omissions in the Registration Statement, any Preliminary Time of Sale Prospectus, a broadly available road show or the Prospectus or any amendment or supplement thereto in reliance that relate to the Selling Shareholder and are based upon and in conformity with written information furnished to the Company in writing by the Selling Shareholder pertaining, as such, 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 has no reason does not own any warrants, options or similar rights to believe that acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the representations Company, other than those described in the Registration Statement, the Time of Sale Prospectus and warranties of the Company set forth in Section 3 are not true and correct in all material respects;Prospectus.
(i) The There are no contracts, agreements or understandings between the Selling Shareholder will deliver and any person that would give rise to you prior to a valid claim against the Company or at each Applicable Closing Date any Underwriter for a properly completed and executed Internal Revenue Service Form W-8BEN (brokerage commission, finder’s fee or other applicable Form W-8;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) Certificates in negotiable form representing all There are no affiliations or associations between any member of the Selling Shareholder Shares FINRA and the Selling Shareholder Option Shares to be sold 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 have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed 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 American Stock Transfer & Trust Company this Agreement will be paid to a member of FINRA or any affiliate of (or person “associated with,” as custodian (such terms are used in the "CUSTODIAN");Rules of FINRA) such member.
(k) The Selling Shareholder is has not subject to any order prepared or directive of, had prepared on its behalf or party to any agreement withused or referred to, any regulatory agency having jurisdiction free writing prospectus, and represents that it has not distributed any written materials in connection with respect to him;the offer or sale of the Shares.
(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 Any certificate signed by the Selling Shareholder and delivered to the Underwriters or counsel 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, Underwriters 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 such executor or trustee 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 connection with the Shares shall be delivered 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 on behalf indirectly, use the proceeds 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 offering, or lend, contribute or otherwise make available such deathproceeds to any subsidiary, incapacity, termination, dissolution joint venture partner or other event had not occurredPerson:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, regardless of whether or not at the Custodian shall have received notice time of such deathfunding or facilitation, incapacityis 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, terminationwhether as underwriter, dissolution advisor, investor or other eventotherwise).
Appears in 1 contract
Sources: Underwriting Agreement (Fabrinet)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power this Agreement, the Custody Agreement signed by the Selling Shareholder and authority ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as Custodian, relating to enter into this Agreement and to sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the "Custody Agreement") and upon the delivery Power of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title Attorney appointing certain individuals as attorneys-in-fact to the Shares extent set forth therein, relating to be delivered the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, or the trust agreement governing the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement 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 offering, issuance or offer and sale of the Shares.
(c) The Selling Shareholder Shares hereunder has, and on the Closing Date will have, valid title to, or a valid "security entitlement" within the consummation meaning of Section 8-501 of the transactions contemplated New York Uniform Commercial Code in respect of (x) the shares of common stock of Old Journal that will, on the 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, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares Custody Agreement and the Selling Shareholder Option Power of Attorney and to sell, transfer and deliver the Shares to be sold hereby;by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, are valid and binding agreement agreements of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and the consummation Delivery 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, if applicable) and compliance to be sold by the Selling Shareholder with his obligations under and payment thereof pursuant to this Agreement will pass valid title to such Shares, free 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 breach of, or default or Repayment Event under, or result in the creation or imposition clear of any lien, charge or encumbrance upon any property or assets adverse claim within the meaning of Section 8-102 of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentNew York Uniform Commercial Code, to which the Selling Shareholder is a party or by which he may be bound, or to which any each Underwriter who has purchased such Shares without notice of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material an adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;claim.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth contained in Section 3 1 are not true and correct and has no knowledge of any material fact, condition or information not disclosed in all the Prospectus that has had, or may have, a material respects;adverse effect on the Journal Enterprise. The Selling Shareholder is not prompted by any material information concerning the Company, Old Journal or their respective subsidiaries which is not set forth in the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Selling Shareholder Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will deliver not contain any untrue statement of a material fact or omit to you prior state a material fact required to be stated therein or at each Applicable Closing Date 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 properly completed 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 executed Internal Revenue Service Form W-8BEN (warranties set forth in this paragraph 2(g) are limited to statements or other applicable Form W-8;
(j) Certificates omissions made in negotiable form representing all of reliance upon information relating to the Selling Shareholder Shares and furnished to the Selling Shareholder Option Shares to be sold Company in writing by the Selling Shareholder have been placed in custody under a Custody Agreement, expressly for use in the form heretofore furnished to you (Registration Statement, the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 Prospectus or any such executor amendments or trustee 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 eventsupplements thereto.
Appears in 1 contract
Sources: Underwriting Agreement (Journal Co)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself the Underwriters and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Company that:
(a) The Selling Shareholder has valid is the lawful owner of the Shares to be sold by the Selling Shareholder pursuant to this Agreement and unencumbered has, and on the Closing Date will have, good and clear title to 2,300,000 shares such Shares, free of Class A Common Stock of the Companyall restrictions on transfer, that are convertible into 2,300,000 Sharesliens, encumbrances, security interests and claims whatsoever.
(b) Such Upon delivery of and payment for such Shares pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full legal right, power and 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 the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunderin the manner provided herein and therein, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement of this Agreement and the Custody Agreement is a legal, valid and binding agreement of the Selling Shareholder;Shareholder enforceable in accordance with its terms, except to the extent which rights to indemnity and contribution provided hereunder may be limited by applicable law.
(ed) The execution, delivery and performance power of this Agreement and the 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, if applicable) and compliance 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 his obligations under this Agreement regard to the transactions contemplated hereby and by the Registration Statement, the Prospectus and the Custody Agreement, do not has been duly authorized, executed and will notdelivered 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, whether with or without and, pursuant to such power of attorney, the giving of notice or lapse of time or both, conflict with or constitute a breach ofSelling Shareholder has authorized [___________] and [____________], or default either one of them, to execute and deliver, except for this Agreement, any document necessary or Repayment Event under, or result desirable in connection with the creation or imposition of any lien, charge or encumbrance upon any property or assets of transactions contemplated hereby and to deliver the Shares to be sold by the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;this Agreement.
(fe) The Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to to, or which has constituted 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 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;.
(f) The execution, delivery and performance of this Agreement by the Selling Shareholder, compliance by the Selling Shareholder with all the provisions hereof and the consummation of the 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 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 Selling Shareholder or property of the Selling Shareholder.
(g) Neither The Registration Statement does not, and will not on the Registration StatementClosing Date (or the Additional Closing Date, any Preliminary Prospectusif any), the Prospectus or any amendment or supplement thereto contains contain any untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by .
(h) Neither the Selling Shareholder pertainingnor any of the Selling Shareholder's affiliates directly, as suchor indirectly through one or more intermediaries, for use therein;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.
(hi) 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 no reason to believe that 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 of the Company set forth in Section 3 1 above are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 eventcorrect.
Appears in 1 contract
Sources: Underwriting Agreement (Netbank Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter and the Company on the date hereof, and shall be deemed to represent and warrant to each Underwriter and the Company on the Closing Date and the Additional Closing Date, that:
(a) The Such Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of such Shares hereunder and payment for of the purchase price as herein contemplated, each of the Underwriters purchasing such Shares on each Applicable Closing Date hereunderin good faith and without notice of any lien, the several Underwriters claim or encumbrance will acquire obtain valid and unencumbered 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 be delivered by the or claims of any creditor, devisee, legatee or beneficiary of such Selling Shareholder on such Applicable Closing DateShareholder.
(cb) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Such Selling Shareholder has the legal rightduly authorized (if applicable), power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreementdelivered, in the form heretofore furnished to you the Representatives, a Power of Attorney (the "CUSTODY AGREEMENTPower of Attorney")) appointing ___________________________ and _________________ as attorneys-in-fact (collectively, duly executed the "Attorneys" and delivered by individually, an "Attorney") and a Letter of Transmittal and Custody Agreement (the Selling Shareholder to American Stock Transfer & "Custody Agreement") with Firstar Trust Company Company, as custodian (the "CUSTODIANCustodian");
(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 ; each of the certificates held in custody for the Selling Shareholder under Power of Attorney and the Custody Agreement are subject to the interests of the Underwriters hereunder constitutes a valid 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 binding agreement of such estate or trustSelling Shareholder, or in the case of a partnership or corporation, by the dissolution of enforceable against such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee 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 its terms, except as the terms and conditions of this Agreement and the Custody Agreement and shall enforcement thereof may be as valid as if such deathlimited by bankruptcy, incapacityinsolvency, terminationreorganization, dissolution moratorium or other event had not occurred, regardless of whether similar laws relating to or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.affecting
Appears in 1 contract
Sources: Underwriting Agreement (Insurance Management Solutions Group Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, hereby represents and warrants to the Company and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter thatas follows:
(a) The Selling Shareholder has valid 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 unencumbered title to 2,300,000 shares of Class A Common Stock of an agreement dated on or about the Company, that are convertible into 2,300,000 Sharesdate hereof between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) Such The Selling Shareholder will have, valid and unencumbered title has granted an irrevocable power of attorney (the "Power of Attorney") to the Shares on each Applicable Closing DateCompany 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 delivered sold by the Selling Shareholder on such Applicable Closing Date and 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 Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Datepursuant hereto.
(c) No filing withThis Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, approvalexecution and delivery by the other parties hereto, consenteach constitutes the valid and legally binding agreement of the Selling Shareholder, licenseenforceable against the Selling Shareholder in accordance with its terms, orderexcept as the enforceability thereof may be limited by bankruptcy, registrationinsolvency, qualification reorganization, moratorium or decree of, any court or governmental authority or agency is necessary or required for other similar laws affecting the -12- 13 enforcement of creditors' rights generally and by general equitable principals.
(d) The execution and delivery by the Selling Shareholder of this Agreement and the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement (i) will not contravene any provision of applicable law, statute, rule or 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, (ii) does not require on the part of the Selling Shareholder any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states or other jurisdiction in connection with the offering, issuance or offer and sale of the Selling Shareholder Shares hereunder which have been or the consummation of the transactions contemplated by will be effected in accordance with this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(diii) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do will not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or 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 contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he the Selling Shareholder may be bound, bound or to which any of the property or assets of the Selling Shareholder is subject subject.
(except for such conflictse) The Selling Shareholder has, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect and on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, valid and marketable title to the Shares to be sold by the Selling Shareholder on such Closing Date, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any respective propertiesrestriction on transfer, assets or operations;except as otherwise described in the Registration Statement and Prospectus.
(f) The Selling Shareholder has, and 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 sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder on such Closing Date in the manner provided by this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder on any Closing Date pursuant to this Agreement, the several Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to the Selling Shareholder furnished in writing by the Selling Shareholder expressly for use in the Registration Statement and Prospectus is, and on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will be, true, correct, and complete, and does not, and on each Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(i) The Selling Shareholder has reviewed the Registration Statement and Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or 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, misleading.
(j) 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 the Subsidiary which is not set forth in the Prospectus.
(k) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted 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;.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(hl) The Selling Shareholder has no reason to believe actual knowledge that the representations and warranties any representation or warranty of the Company set forth in Section 3 are not true and correct 4 above is untrue or inaccurate in all any material respects;respect.
(im) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed representations and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all warranties of the Selling Shareholder Shares in the Custody Agreement are, and the Selling Shareholder Option on each Closing Date on which Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished pursuant to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 will be, true 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 eventcorrect.
Appears in 1 contract
Sources: Underwriting Agreement (Talx Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself each of the Underwriters as of the date hereof and as of the number of Selling Shareholder Shares Closing Date and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Additional Closing Date that:
(a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and 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 and validly executed and delivered by the Selling Shareholder and constitutes the legal, valid and binding obligation of the Selling Shareholder.
(b) The Selling Shareholder has full right, power and 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 and constitute the legal, valid and binding obligation of the Selling Shareholder, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or 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 at law). Counterparts of the Selling Shareholder's Custody Agreement, duly signed by (i) the Company, as custodian (in such capacity, the "Custodian") and (ii) Roger I. MacFarlane, Peter Thorrington and Lawrence R. Samuels, as the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇r'▇ ▇▇▇▇▇▇▇▇▇-▇▇-▇▇ct (e▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ty, an "Attorney-In-Fact") have been delivered to the Company and the Lead Manager on or prior to the date of this Agreement.
(c) The Selling Shareholder agrees 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 that the obligations of the 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 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 voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever. Certificates for all of 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, if any, which are to be sold by the Selling Shareholder pursuant to this Agreement on such date and the legal right and power, and all authorizations and approvals required by law, to enter into this Agreement and the applicable Custody Agreement and Power of Attorney, to sell, assign, transfer and deliver all of the Shares to and Additional Shares, if any, which may be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; pursuant to this Agreement and upon the delivery to comply with its other obligations hereunder and thereunder, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title security interests to the Shares extent created or suffered to be delivered exist by the Selling Shareholder on such Applicable Closing DateShareholder.
(cf) No filing with, or authorizationconsent, approval, consent, licenseauthorization, order, registration, qualification filing, qualification, license or decree of, permit of or with any court or any public, governmental authority or regulatory agency or body or any third party is necessary or required for the execution, delivery and performance by the Selling Shareholder of his obligations hereunder, in connection with this Agreement or the offering, issuance Custody Agreement and Power of Attorney or sale the consummation by the Selling Shareholder of the transactions of the Selling Shareholder Shares hereunder contemplated herein or the consummation of the transactions contemplated by this Agreementtherein, except such as has have been already obtained or under the Act and such as may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules blue sky laws of the NASD any jurisdiction in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;Additional Shares, if any, by the Underwriters and the rules of the NASD.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(eg) The execution, delivery and performance of this Agreement, the Custody Agreement and Power of Attorney by the Selling Shareholder and the consummation of the transactions contemplated by this Agreement herein and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance therein by the Selling Shareholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 time, or both, conflict with or would constitute a breach of, or default or Repayment Event default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractlaw, indenturestatute, mortgage, deed rule or regulation or the terms of trust, loan any indenture or credit agreement, note, lease other agreement or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject subject, or (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action B) result in any violation of the provisions of any applicable lawmemorandum or articles of association, statutecharter or by-laws or certificate of formation, ruletrust agreement, regulationpartnership agreement, articles of partnership or other organizational documents, as applicable, of the Selling Shareholder, or any judgment, order, writ or decree, statute, rule or regulation applicable to the Selling Shareholder of any government, government instrumentality court or court, domestic any public or foreign, 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 rights as have been waived or which are described in the Prospectus (and which have been complied 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 Statement and the Prospectus.
(j) Except as disclosed in the Prospectus and other than this Agreement, 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 respective propertiesUnderwriter for a brokerage commission, assets finder's fee or operations;other like payment in connection with the transactions contemplated by this Agreement, the Registration Statement and the Prospectus.
(fk) 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 and will not contain any untrue statement of a material fact; provided that this representation and warranty is made only as to information contained in the Registration Statement or the Prospectus under the caption "Selling Shareholder" and relating to the Selling Shareholder.
(l) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to to, or which has constituted that might be reasonably expected to, cause or result in stabilization or manipulation of the price of any security of the Company Ordinary Shares to facilitate the sale or resale of the Shares or Additional Shares;, if any.
(gm) Neither 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 Preliminary Prospectusmaterial adverse information with regard to the Company or the Subsidiaries which is not disclosed in the Registration Statement, the Prospectus or any amendment or supplement thereto contains document incorporated therein by reference, (ii) has no knowledge of any untrue statement misstatement of a material fact or omits failure to state therein a material fact required to be stated therein or necessary to make the statements therein in the Prospectus, in light of the circumstances under which they were made, not misleading, in each case and (iii) is not prompted to sell the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares Additional Shares, if any, to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, by any information concerning the Company or any of the Subsidiaries which is not set forth in the form heretofore furnished to you (Registration Statement, the "CUSTODY AGREEMENT"), duly executed and delivered Prospectus or any document incorporated therein by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");reference.
(ko) 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 representations and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations warranties of the Selling Shareholder hereunder shall not be terminated by operation in its Custody Agreement and Power of lawAttorney are, whether by and on the death or incapacity of the Selling Shareholder orClosing Date and Additional Closing Date, in the case of an estate or trustif any, by the death or incapacity of any executor or trustee or the termination of such estate or trustwill be, 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 such executor or trustee 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 true and correct. Any certificate signed by or on behalf of the Selling Shareholder in accordance with and delivered to the terms and conditions of this Agreement and Representatives or to counsel for the Custody Agreement and Underwriters shall be deemed to be a representation and warranty by the Selling Shareholder to each Underwriter as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not to the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventmatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered performance by the Selling Shareholder on such Applicable Closing Date hereunder; and of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder, or any agreement or other instrument binding upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, under this Agreement except such as may be required by the securities or Blue Sky laws of the various states in connection with the offering, issuance or offer and 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;Offered ADSs.
(dc) The Selling Shareholder has and at the legal Closing Date will have (A) good and marketable title to the Ordinary Shares underlying the Offered ADSs to be delivered by the Selling Shareholder, free and clear of any liens, encumbrances, equities and claims and (B) full right, power and all authorizations authority to effect the sale and approvals required delivery of such Offered ADSs.
(d) Upon payment for the Offered ADSs sold by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This such Selling Shareholder under this Agreement and the Custody Agreement have been duly executed and delivered delivery by such Selling Shareholder to DTC or its agent of the ADSs in book entry form to securities accounts maintained by the Selling Shareholder Underwriters at the DTC or its nominee, and each such agreement is payment therefor in accordance with this Agreement, the Underwriters will acquire a legal, valid and binding agreement securities entitlement (within the meaning of Section 8-501 of the Selling Shareholder;UCC) with respect to such Offered ADSs, and no action based on an “adverse claim” within the meaning of 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 8-102.
(e) The execution, delivery and performance of this Agreement and Ordinary Shares represented by the consummation of the transactions contemplated Offered ADSs to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance may be freely deposited by the Selling Shareholder with his obligations under this the Depositary or its nominee in accordance with the Deposit Agreement and against the Custody Agreement, do not and will not, whether with or without issuance of ADRs evidencing ADSs representing such Ordinary Shares so deposited by the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result Selling Shareholder.
(f) Except as disclosed in the creation or imposition Time of any lienSale Prospectus and Registration Statement, charge or encumbrance upon any property or assets of the Offered ADSs, as well as the Ordinary Shares underlying such Offered ADSs, delivered at the Closing Date by the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which will be freely transferable by the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;Shareholder.
(fg) The Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action which is designed to 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 price of any security of the Company to facilitate the sale or resale of Ordinary Shares or the Shares;Offered ADSs.
(gh) Neither 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, any Preliminary Prospectusno 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 amendment information concerning the Company or supplement thereto contains 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 such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to (iii) the extent, but only to Registration Statement as of the extent, that such date hereof does not contain any untrue statement of a material fact or omission was made 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 (vi) 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, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus or based upon information relating to any amendment or supplement thereto in reliance upon and in conformity with written information Underwriter furnished to the Company in writing by such Underwriter through the Selling Shareholder pertaining, as such, Managers expressly for use therein;.
(hm) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 Neither the Selling Shareholder or any such executor or trustee should die or become incapacitatedof its subsidiaries or, to the knowledge of the Selling Shareholder, any director, officer, agent, employee, affiliate, 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 person acting on behalf of the Selling Shareholder in accordance with the terms and conditions or any of this Agreement its subsidiaries is currently subject to any U.S. sanctions administered by OFAC; and the Custody Agreement and shall 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 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 eventcurrently 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, represents and warrants to and covenants, solely covenants with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder now has and on the Closing Dates (as hereinafter defined) will have good and valid and unencumbered title to 2,300,000 all the shares of Class A Common the Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such to be sold by such Selling Shareholder will havehereunder, valid free and unencumbered title to the Shares on each Applicable Closing Dateclear of all liens, to be delivered by the Selling Shareholder on such Applicable Closing Date encumbrances, equities, security interests and claims whatsoever, with full legal 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 Applicable Closing Date hereunder; and that upon the delivery of and payment for such Shares on each Applicable Closing Date shares of the Stock hereunder, the several Underwriters Underwriter will acquire receive good and valid and unencumbered title to the Shares shares of the Stock to be delivered sold by the Selling Shareholder on such Applicable Closing DateShareholder, free and clear of all liens, encumbrances, equities, security interests and claims whatsoever.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(fb) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is 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 of, the price of any security the Stock of the Company in order to facilitate the sale or resale of the Shares;Stock or otherwise.
(gc) Neither The Selling Shareholder is disposing of shares of the Registration StatementStock for his own account. The Selling Shareholder is not selling shares of the Stock, any 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 Shareholder and this Agreement is a valid and binding obligation of the Selling Shareholder enforceable in accordance with its terms.
(e) All information furnished to the Company by the Selling Shareholder and included in the Preliminary Prospectus, Prospectus and the Prospectus or any amendment or supplement thereto contains 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 a material fact nor does it omit to state any material fact required to be stated therein or necessary to make such information not misleading.
(f) To the best knowledge of the Selling Shareholder, without independent investigation, neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto, will include any untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) The execution and performance of this Agreement and the consummation of the transactions herein and therein contemplated and the fulfillment of the terms hereof and thereof will not conflict with, result in each case a breach of, or constitute a default under any will, trust (constructive or other), agreement, indenture, mortgage, note, deed, rule, regulation, order, injunction, judgment, decree or other instrument to which the extentSelling Shareholder is a party or by which he is bound.
(h) All consents, but only to approvals, authorizations and orders necessary for the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon execution and in conformity with written information furnished to the Company delivery by the Selling Shareholder pertainingof this Agreement and for the sale and delivery of the Stock to be sold by the Selling Shareholder hereunder, as such, for use therein;have been obtained.
(hi) The Without independent investigation, the Selling Shareholder has no reason to believe is not aware that any of the representations and warranties of the Company set forth in Section 3 are not true and correct 6 hereof is untrue or inaccurate in all any material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 eventrespect.
Appears in 1 contract
Sources: Underwriting Agreement (Metropolitan Financial Corp /Oh/)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to the several Underwriters, warrants as of the date hereof and covenantsas of each Closing Date, solely and agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I heretoseveral Underwriters, to each Underwriter that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 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, agency or 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 under the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Securities.
(c) The Selling Shareholder is, and immediately prior to each Closing Date, the Selling Shareholder will havebe, valid and unencumbered title to the Shares on each Applicable Closing Date, record owner of the Securities to be delivered by the Selling Shareholder on hereunder at such Applicable Closing Date Date, and the Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, assign and transfer and deliver the Ordinary Shares to be delivered by the Selling Shareholder on 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 Applicable Selling Shareholder at such Closing Date hereunder; and upon the Date.
(d) Upon delivery of and payment for such Shares on the Securities to the Selling Shareholder at each Applicable Closing Date hereunder, the several Underwriters will acquire valid title to, including a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Securities free and unencumbered clear of all liens, encumbrances, equities or claims, and upon delivery of such Securities and payment therefor pursuant hereto, valid title to such Securities, free and clear of all liens, encumbrances, equities or claims, will pass to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateUnderwriters.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The executionSelling Shareholder will, delivery and performance prior to each Closing Date, deposit the Ordinary Shares to be represented by the Offered ADSs with the Depositary in accordance with the provisions of this the Deposit Agreement and otherwise complies with the consummation of the transactions contemplated by this Deposit Agreement and in the Registration Statement so that ADSs will be executed (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesand, if applicable, countersigned) and compliance issued by the Selling Shareholder with his obligations under this Agreement Depositary against receipt of such Ordinary Shares and delivered to 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for Underwriters at such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;Closing Date.
(f) The Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which 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 Shares;Securities.
(g) Neither 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, any Preliminary Prospectus, the General Disclosure Package or the Prospectus to sell its Securities pursuant to this Agreement.
(i) (i) Each part of the Registration Statement, when such part became effective, did not contain, and, as amended or any supplemented, if applicable, did not or will not, as the case may be, contain at the time of such amendment or supplement thereto contains supplement, any untrue statement of a material fact or omits omit to state therein 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 (iii) the Prospectus does not or will not, as the case may be, as of the date of the Prospectus and as at each case 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 light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 3(h) are limited only to information furnished to the extent, but only to Company in writing by the extent, that such untrue statement or omission was made Selling Shareholder expressly for use in the Registration Statement, any Preliminary Prospectusthe General Disclosure Package, the Prospectus or any amendment amendments or supplement thereto in reliance upon supplements thereto, it being understood and in conformity with written agreed that the only such information furnished to the Company by the Selling Shareholder pertainingconsists of Selling Shareholder Information. Each Underwriter, as such, 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 therein;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.
(hi) 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 has no reason to believe 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 representations and warranties time of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver dealing or transaction is or was the subject of Sanctions, except to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other the extent permitted by applicable Form W-8;
(j) Certificates in negotiable form representing all of law. It is understood that the Selling Shareholder Shares does not make or repeat, as appropriate, the representation and warranty contained in this Section 3(j)(ii) and/or the Selling Shareholder Option Shares to be sold representation and warranty given by the Selling Shareholder have been placed in custody under Section 3(j)(ii) to the extent that such provisions are or would be unenforceable or would result in a Custody Agreement, 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 form heretofore furnished United Kingdom. The representations and warranties given in this clause are only sought by and given to you 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 (the "CUSTODY AGREEMENT"Außenwirtschaftsverordnung – AWV), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");.
(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 not 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 order law or directive of, or party to regulation implementing the EU Blocking Regulation in any agreement with, any regulatory agency having jurisdiction with respect to him;member state of the European Union.
(l) The Shares represented by For the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject to the interests past five years, none 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 such executor or trustee should die or become incapacitatedof its subsidiaries, or if any such estate or trust should be terminateddirector, officer, or if employee thereof, or, to the Selling Shareholder’s knowledge, any such partnership agent or corporation should be dissolvedrepresentative 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 if authorization of any other such event should occurdirect or indirect unlawful payment or benefit, before the delivery to any foreign or domestic government official or employee, including of the Shares hereunderany government-owned or controlled entity or of a public international organization, certificates representing the Shares shall be delivered by 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 accordance 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 terms Anti-Corruption Laws, the Anti-Money Laundering Laws and conditions Sanctions.
(o) The Selling Shareholder is a “United States person” within the meaning of this Agreement 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 Custody Agreement 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 shall be as valid as if such death, incapacity, termination, dissolution (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 event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.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, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 partnership 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 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 and unencumbered title to to, or a valid "security entitlement" within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date Shareholder, free and full rightclear of all security interests, power claims, liens, equities or other encumbrances, and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShares.
(ce) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required Upon payment for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Additional Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractthis Agreement, indenturedelivery of such Additional Shares, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentas 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 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, 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 share registry in accordance with its certificate of 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(g) are limited to statements or omissions made in reliance upon information relating to the Selling Shareholder is a party or furnished to the Company in writing by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except expressly for such conflictsuse in the Registration Statement, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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 Prospectus or any respective properties, assets amendments or operations;supplements thereto.
(fh) 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 the its Additional Shares;.
(gi) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company Except as disclosed by the Selling Shareholder pertainingin writing to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of neither the Selling Shareholder Shares and 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 Selling Shareholder Option Shares to be sold by meaning of Article 1(q) of the Selling Shareholder have been placed in custody under a Custody AgreementBylaws of the National Association of Securities Dealers, in the form heretofore furnished to you Inc. (the "CUSTODY AGREEMENTNASD"), duly executed and delivered by the 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 member firm 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 such executor or trustee 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 eventNASD.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, warrants and covenants, solely with respect to himself and the number Each of Selling Shareholder Shares ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (“Motto”) and the Selling Shareholder Option Shares set forth opposite his name on Schedule I heretoShareholder, to each jointly and severally, represents and warrants to, and agrees with, the Underwriter that:
(a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this This Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulationsduly authorized, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 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 terms enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and conditions 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 such Selling Shareholder of its obligations under, this Agreement will not contravene or conflict with, result in a breach of, or constitute a default under, or require the consent of any other party to, the charter or by-laws or other 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, 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. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required of or by a Selling Shareholder for the consummation by such Selling Shareholder of the transactions contemplated in this Agreement, except such as 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 Company under the Registration Statement or 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 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 offering, sale or purchase by the Underwriter of any of the Firm 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.
(g) All information furnished by or on behalf of the Selling Shareholder for use in the Registration Statement and Prospectus is, and on the Closing Date will be, true, correct, and complete in all material respects, and does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state 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 paid by or 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 the Custody Agreement later of (i) the completion of the Underwriter’s distribution of the Firm Securities and shall (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 or the Registration Statement.
(k) The Selling Shareholder acknowledges that the Underwriter and, for purposes of the opinions to be as valid as if delivered pursuant to Section 9 hereof, counsel to the Selling Shareholder and counsel to the Underwriter, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to 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 eventreliance.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 organizational documents of the Selling Shareholder, (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 (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 as will have been obtained on or prior to the time of delivery of the Shares pursuant to Section 5.
(d) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered 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 on each Applicable Closing Date, to be delivered sold by the such Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed or a security entitlement in custody under a Custody Agreement, in respect of such Shares.
(e) Upon payment for the form heretofore furnished Shares to you (the "CUSTODY AGREEMENT"), duly executed and delivered be sold by the Selling Shareholder pursuant to American Stock Transfer 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 registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as custodian a “clearing corporation” within the meaning of Section 8‑102 of the UCC and (z) appropriate entries to the "CUSTODIAN");accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(kf) The Neither the Selling Shareholder nor, to the knowledge of the Selling Shareholder, any director or officer or employee or affiliate of such Selling Shareholder is not currently 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 Sanctions; and the Selling Shareholder under will not, directly or indirectly, use the Custody Agreement are subject to the interests proceeds of the Underwriters hereunder and offering of the arrangements made Shares sold by the Selling Shareholder hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for such custody are to that extent irrevocable; the obligations purpose of financing 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 activities 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 such executor or trustee 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 eventperson 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, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered 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 certificate of 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 Shareholder 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 Applicable 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 state or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date and 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 Applicable Closing Date hereunder; hereunder or a valid security entitlement (within the meaning of Section 8-501 of the New York Uniform Commercial Code) in respect of such Shares, free and upon the delivery clear of and all security interests, claims, liens, equities or other encumbrances.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered 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 Applicable Closing DateUnderwriter 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 registry in accordance with its 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.
(ci) No filing withThe Registration Statement, when it became effective, did not contain and, as amended or authorizationsupplemented, approvalif applicable, consentwill 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, license(ii) the Time of Sale Prospectus does not, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for and at the performance by time of each sale of the Selling Shareholder of his obligations hereunder, Shares in connection with the offering, issuance or sale of offering when the Selling Shareholder Shares hereunder or Prospectus is not yet available to prospective purchasers and at the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement Closing Date (as defined in Section 4(j5), 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) hereof). This Agreement 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 (iv) the Custody Agreement have been duly executed 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 delivered warranties set forth in this paragraph 2(f) are limited to statements or omissions 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 and each such agreement is a legal, valid and binding agreement consists of the following information in the Prospectus furnished in writing on behalf of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement : the Selling Shareholder’s name and the consummation information relating to the principal shareholders and Selling Shareholder’s holdings of the transactions contemplated by this Agreement and Shares set forth in the Registration Statement (including the issuance section entitled “Principal and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) Shareholders”. The Selling Shareholder has not taken and will not take, directly or indirectly, any action which that is designed to or which has constituted that might reasonably be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 1 contract
Sources: Underwriting Agreement (Atento S.A.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 certificate of incorporation or by-laws of the Selling Shareholder (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 and unencumbered title to to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered 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 Applicable Closing DateUnderwriter 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 registry in accordance with its certificate of 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.
(ce) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance 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 his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the a Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement form heretofore furnished to you (including the issuance and sale of such Selling Shareholder “Custody Agreement”) with Computershare Inc., as custodian (the “Custodian”); the Shares and so held in custody for the Selling Shareholder Option Shares, if applicable) and compliance by are subject to 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets interests hereunder of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;Underwriters.
(f) The Selling Shareholder has not taken no reason to believe that the representations and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security warranties of the Company to facilitate the sale or resale contained in Section 1 of this Agreement and of the Shares;
(g) Neither Adviser contained in Sections 1 and 2 of this Agreement are not true and correct, is familiar with the Registration Statement, any Preliminary Prospectus, 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 amendment information concerning the Company or supplement thereto contains 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 omits omit to state therein 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 each case connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 6), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectus, not misleading and (iii) the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertainingdoes not contain and, as suchamended or supplemented, for use 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;
(h) The Selling Shareholder has no reason to believe , in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties of the Company and any agreements set forth in Section 3 this paragraph 3(g) are not true and correct limited to statements or omissions made in all material respects;
(i) The Selling Shareholder will deliver reliance upon information relating to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 writing by or on behalf of the Selling Shareholder Stockholder expressly for use in accordance with the terms and conditions Registration Statement, the Time of this Agreement and Sale Prospectus, the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution Prospectus or other event had not occurred, regardless of whether any amendments or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventsupplements thereto.
Appears in 1 contract
Sources: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenantsagrees with, solely with respect to himself each of the International Underwriters as of the Time of Execution, Time of Sale, Closing Date and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Additional Closing Date that:
(a) The 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 has valid and unencumbered title to 2,300,000 shares of Class A Common Stock furnished in writing by or on behalf of the CompanySelling 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 are convertible into 2,300,000 Sharesthe 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) Such Selling Shareholder will haveThis Agreement and the Brazilian Underwriting Agreement have been duly authorized, valid executed and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by or on behalf of the Selling Shareholder on such Applicable Closing Date and 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 Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShareholder.
(c) No filing withCede & 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 authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance more securities accounts beneficially owned by the Selling Shareholder of his obligations hereunder, and such ADSs are not “restricted securities” as defined 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 under the Securities Act or the Rules rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;regulations promulgated thereunder.
(d) The Selling Shareholder has the legal right, power execution and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This delivery of this Agreement and the Custody Brazilian Underwriting Agreement have been duly executed and delivered the sale and delivery of the ADSs to be sold by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) herein and compliance by the Selling Shareholder with his its obligations under this Agreement and the Custody Agreement, hereunder do not and will not, whether with or without the giving of notice or lapse passage of time or both, (i) conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon (A) the ADSs to be sold by the Selling Shareholder or (B) any other property or assets of the Selling Shareholder Shareholder, in each case, pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or any other agreements agreement or instrument, instrument to which the Selling Shareholder is a party or by which he the Selling Shareholder may be bound, or to which any of the property or assets of the Selling Shareholder is subject subject, (except for such conflictsii) result in any violation of the provisions of the charter or by-laws or other organizational instrument of the Selling Shareholder, breachesif applicable, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action (iii) result in any violation of any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree, decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective of its properties, assets except in the case of clauses (i)(B) and (iii) as would not adversely affect in any material respect the Selling Shareholder’s ability to perform its obligations hereunder and under the Brazilian Underwriting Agreement.
(e) The Selling Shareholder has, and at the Closing Date and each Additional Closing Date, as the case may be, will have, (i) valid title to the ADSs to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or operations;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 ADSs to be sold by the Selling Shareholder or a valid security entitlement in respect of such ADSs.
(f) Upon payment of the purchase price for the ADSs to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such ADSs, as directed by the International Underwriters, to Cede or such other nominee as may be designated by DTC (unless delivery of such ADSs is unnecessary because such ADSs are already in possession of Cede or such nominee), registration of such 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 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,” within the meaning of Section 8-105 of the Uniform Commercial Code then in effect in the State of New York (“UCC”), to such ADSs), (A) under Section 8-501 of the UCC, the International Underwriters will acquire a valid “security entitlement” in respect of such ADSs and (B) 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 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, (I) such ADSs will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Depositary’s registry in accordance with the Deposit Agreement and applicable law, (II) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (III) 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 taken, and will not take, directly or indirectly, any action which is designed to or which has 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 Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;ADSs.
(h) The Selling Shareholder has no reason does not have any registration or other similar rights to believe that the representations and warranties of have any equity or debt securities registered for sale by the Company set forth under the Registration Statement or included in Section 3 are not true and correct in all material respects;the offering contemplated by this Agreement.
(i) The Selling Shareholder will deliver to you prior to has not prepared or at each Applicable Closing Date a properly completed had prepared on its behalf or used or referred to, any “free writing prospectus” (as defined in Rule 405), and executed Internal Revenue Service Form W-8BEN (has not distributed any written materials in connection with the offer or other applicable Form W-8;sale of the ADSs.
(j) Certificates in negotiable form representing all of Neither the Selling Shareholder Shares and 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 Selling Shareholder Option Shares to be sold by meaning of the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");FINRA By-Laws) of FINRA.
(k) The Selling Shareholder is not subject 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 order suit, action or directive ofproceeding 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 party proceeding arising out of or relating to the enforcement of any agreement withaward made pursuant to Section 15(c) of this Agreement, and the Selling Shareholder has validly and irrevocably waived any regulatory agency having jurisdiction with respect objection to him;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 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) The Shares represented by the certificates held in custody for Neither the Selling Shareholder under the Custody Agreement are subject nor any of its subsidiaries, nor, 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 best knowledge of the Selling Shareholder hereunder shall not be terminated by operation of lawShareholder, whether by the death any director, officer, agent, employee or incapacity of the Selling Shareholder or, in the case of an estate other person associated with 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 such executor or trustee 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 acting on behalf of the Selling Shareholder or any of its subsidiaries (any such person, an “Associated Person”), nor, to the knowledge of the Selling Shareholder, its affiliates (but not including (A) any agency or other entity or body constituting part of the government of the State of Qatar or any political subdivision thereof (together, “Qatar”); or (B) any entity related to 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 the extent any such official, agent or employee is an Associated Person) have (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in accordance violation of any provision of the Foreign Corrupt Practices Act of 1977, to the extent applicable to the Selling 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 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 terms Money Laundering Laws and conditions 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 this Agreement 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 OFAC, the UNSC, the European Union, HMT, Switzerland, or other relevant sanctions authority (collectively “Sanctions”); and the Custody Agreement and shall be as valid as if 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 deathproceeds to any subsidiary, incapacity, termination, dissolution joint venture partner or other event had not occurredperson or entity, regardless for the purpose of whether financing the activities of any person currently subject to any U.S., United Nations, European Union, English or not Swiss sanctions administered by OFAC, UNSC, the Custodian shall have received notice European Union, HMT or Switzerland, respectively, in violation of such death, incapacity, termination, dissolution or other eventSanctions.
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 represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 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, agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement 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 Shares or (B) have already been obtained.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to security entitlement in respect of the Shares to be delivered sold by the Selling Shareholder pursuant to this Agreement and the crediting of such Shares on the books of The Depository Trust Company (“DTC”) to securities accounts of the Underwriters (assuming that neither DTC nor any such Applicable Closing DateUnderwriter 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 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 registry in accordance with its certificate of 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.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(de) The Selling Shareholder has delivered to the legal right, power and all authorizations and approvals required by law to enter into Representatives an executed lock-up agreement in substantially the Custody Agreement form attached hereto as Exhibit A (as defined in Section 4(j) hereofthe “Lock-up Agreement”). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;.
(f) The Selling Shareholder has not taken no reason to believe that the representations and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security 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 facilitate the sale or resale of the Shares;sell its Shares pursuant to this Agreement.
(g) Neither (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) the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 to may be, the extentTime of Sale Prospectus, but only to as then amended or supplemented by the extentCompany, that such if applicable, will not, contain any untrue statement of a material fact or omission was made 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 (vi) 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, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus or based upon information relating to any amendment or supplement thereto in reliance upon and in conformity with written information 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 pertainingor, as suchto the knowledge of the Selling Shareholder, for use therein;any employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(hA) 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 offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Selling Shareholder has no reason to believe 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 representations and warranties time of the Company set forth 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 Section 3 are 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 true and correct use, directly or indirectly, the proceeds of the offering in all material respects;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 anti-corruption laws applicable to the Selling Shareholder.
(i) The Selling Shareholder will deliver represents and warrants that it is not (i) an employee benefit plan subject to you prior Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to or at each Applicable Closing Date a properly completed and executed Section 4975 of the Internal Revenue Service Form W-8BEN Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or other applicable Form W-8;account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject has, pursuant to any order or directive ofSection 20(a), 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 extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Underwriters hereunder Specified Courts, and the arrangements made by the Selling Shareholder has, pursuant to Section 20(c), legally, validly and effectively designated, appointed and empowered an agent for such custody are to that extent irrevocable; the obligations service of process in any suit or proceeding based on or arising under this Agreement in any 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 such executor or trustee 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 eventSpecified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered performance by the Selling Shareholder on such Applicable Closing Date hereunder; and upon of its obligations under, this Agreement will not contravene any provision of applicable law, or the delivery certificate of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by incorporation or by-laws of the Selling Shareholder on (if such Applicable Closing Date.
(c) No filing withSelling Shareholder is a corporation), or authorizationany 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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by under this Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution by the Underwriters sale of the Shares.
(c) The Selling Shareholder Shares has, and on the Selling Shareholder Option Closing Date will have a “security entitlement” within the meaning of Section 8-102(a)(17) of the NY UCC in respect of the Shares to be sold hereby;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.
(d) The Selling Shareholder has Upon payment for the legal right, power and all authorizations and approvals required Shares to be sold by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to this Agreement, the crediting of such Shares on the books of the Depository Trust Company (the “DTC”) to securities accounts of the Underwriters and payment therefor by the Underwriters (assuming that no Underwriter has notice of any contractadverse claim (within the meaning of Section 8-105 of the NY UCC) to such Shares), indenture(A) under Section 8-501 of the NY UCC, mortgagethe Underwriters will acquire a security entitlement in respect of such Shares and (B) no action based on any “adverse claim”, deed within the meaning of trust, loan or credit agreement, note, lease or any other agreements or instrumentSection 8-102 of the NY UCC, to which such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder is may assume that when such payment, delivery and crediting occur, (i) DTC will be registered as a party or by which he may be bound, or to which any “clearing corporation” within the meaning of Section 8-102 of the property or assets NY UCC and (ii) appropriate entries to the accounts of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect several Underwriters on the transactions contemplated herein), nor records of DTC will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over have been made pursuant to the Selling Shareholder or any respective properties, assets or operations;NY UCC.
(fe) 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 Shares;Securities.
(gi) Neither the The Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading 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 each case to the extentlight of the circumstances under which they were made, but not misleading; provided that the representations and warranties set forth in this paragraph 2(f) apply only to the extent, that such untrue statement statements or omission was omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company in writing by the Selling Shareholder pertaining, as such, (or on the Selling Shareholder’s behalf) to the Company or the Managers expressly for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 withRegistration Statement, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by preliminary prospectus, 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 Prospectus or any such executor amendments or trustee 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 eventsupplements thereto.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShares.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required Upon payment for the performance Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of his obligations hereundersuch 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 connection 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 the offeringrespect to such security entitlement; for purposes of this representation, issuance or sale of the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares hereunder will have been registered in the name of Cede or another nominee designated by DTC, in each case on the consummation Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under UCC and (z) appropriate entries to the Act or the Rules and Regulations, state securities laws or the bylaws and rules accounts of the NASD in connection with several Underwriters on the purchase and distribution by records of DTC will have been made pursuant to the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;UCC.
(d) The Selling Shareholder has no reason to believe that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j) hereof). This Agreement 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Custody Agreement have been duly executed Prospectus and delivered by the Selling Shareholder and each such agreement is a legalhas no knowledge of any material fact, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and condition or information not disclosed in the Registration Statement (including Time of Sale Prospectus or the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach ofProspectus that has had, or default or Repayment Event undermay have, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein)Company and its subsidiaries, nor will such action result in any violation of 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;
(f) taken as a whole. The Selling Shareholder has is not taken and will not take, directly prompted by any information concerning the Company or indirectly, any action its subsidiaries which is designed not set forth in the Time of Sale Prospectus to or which has constituted stabilization or manipulation of the price of any security of the Company sell its Shares pursuant to facilitate the sale or resale of the Shares;this Agreement.
(ge) Neither the The Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 case sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 5), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary 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 (iv) the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertainingdoes not contain and, as suchamended or supplemented, for use 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;
(h) The Selling Shareholder has no reason to believe , in the light of the circumstances under which they were made, not misleading, except that the representations and warranties of the Company set forth in Section 3 are this paragraph (g) do not true and correct in all material respects;
(i) The Selling Shareholder will deliver apply to you prior to statements or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, omissions in the form heretofore Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 expressly 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 such executor or trustee 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 eventuse therein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 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. No consent, approval, authorization or order of, or qualification with, any governmental body, agency or 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 and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered 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 Applicable Closing Date.
Underwriters will acquire a “security entitlement” (cwithin the meaning of Section 8-102(a)(17) No filing withof 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, or authorizationno action based on any “adverse claim” (within the meaning of Sections 8-102(a)(1) and 8-105 of the UCC) to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, approvalthe Selling Shareholder may assume that when such payment, consentdelivery, licenseregistration and crediting occur, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for (x) the performance Shares being sold by the Selling Shareholder will have been registered in the name of his obligations hereunderCede or such other nominee as may be designated by DTC, in connection each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” and thus a “securities intermediary” within the offering, issuance or sale meaning of Section 8-102 of the Selling Shareholder Shares hereunder or the consummation UCC and its jurisdiction for purposes of Article 8 of the transactions contemplated by this Agreement, except such as has been already obtained or may UCC will be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules State of the NASD in connection with New York and (z) appropriate entries to the purchase and distribution by the Underwriters accounts of the Selling Shareholder Shares and several Underwriters on the Selling Shareholder Option Shares records of DTC will have been made pursuant to be sold hereby;the UCC.
(de) The Selling Shareholder has delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ an executed lock-up agreement in substantially the legal right, power and all authorizations and approvals required by law to enter into form attached hereto as Exhibit A (the Custody Agreement (as defined in Section 4(j) hereof“Lock-up Agreement”). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;.
(f) The Selling Shareholder has not taken and will not take, directly To the extent that any statements or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither omissions made in the Registration Statement, any Preliminary the Time of Sale Prospectus, the Prospectus or any amendment or supplement thereto contains 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 and will not contain any untrue statement of a material fact or omits omit to state therein 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, in each case to the extent, but only to the extent, that such untrue statement or omission was made (in the Registration Statement, case of any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore light of the circumstances under which they were made) not misleading; it being understood and agreed that the only such information furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust the Company as custodian consists of (A) the legal name, address and the number of Shares beneficially owned by the Selling Shareholder before and after the offering and (B) the other information with respect to the Selling Shareholder (excluding percentages) which appear in the table (and corresponding footnotes) under the captions “Selling Stockholder” and “Principal and Selling Stockholders” in the Prospectus (the "CUSTODIAN"“Selling Shareholder Information”);.
(kg) The Selling Shareholder is not prompted by 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) Neither the Selling Shareholder, nor, to the knowledge of the Selling Shareholder, any 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 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 order joint venture partner or directive ofother 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 party authorization of the payment or giving of money, or anything else of value, to any agreement withPerson 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 regulatory agency having jurisdiction 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 him;
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject Anti-Money Laundering Laws, Anti-Corruption Laws, or Sanctions is pending or, 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 best knowledge of the Selling Shareholder hereunder shall not be terminated by operation of lawShareholder, 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 such executor or trustee 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.threatened
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, hereby represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter thatas follows:
(a) The Selling Shareholder has valid and unencumbered title delivered an irrevocable exercise notice with respect to 2,300,000 shares of Class A Common Stock of the Warrant to the Company, that are convertible into 2,300,000 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) Such The Selling Shareholder will havehas granted an irrevocable power of attorney (the "Power of Attorney") to Arth▇▇ ▇. ▇▇▇ Prad▇ and Rinse de Jong, valid and unencumbered title to on behalf of the Shares on each Applicable Closing DateSelling Shareholder, to be delivered by the Selling Shareholder on such Applicable Closing Date execute and full right, power and authority to enter into deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Datepursuant hereto.
(c) No filing withEach 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 and, assuming due authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for ,
(d) The execution and delivery by the Selling Shareholder of this Agreement and the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement, does not and will not (i) violate or contravene 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; (ii) require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the blue sky laws of the various states in connection with the offering, issuance or offer and sale of the Selling Shareholder Shares hereunder which have been or the consummation of the transactions contemplated by will be effected in accordance with this Agreement, except such as has been already obtained ; or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(diii) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Shares to be sold by the Selling Shareholder pursuant to the terms of any contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he the Selling Shareholder may be bound, bound or to which any of the property or assets of the Selling Shareholder is subject subject.
(except for such conflictse) The Selling Shareholder is the holder of and has the right to exercise the Warrant. On the Firm Shares Closing Date, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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 will have valid and marketable title to the Shares to be sold by the Selling Shareholder free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any respective propertiesrestriction on transfer.
(f) On the Firm Shares Closing Date, assets the Selling Shareholder will have full legal right, power and authorization, and any approval required by law, to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder in the manner provided by this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, the several Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, security interest or operationsother encumbrance.
(h) The responses set forth in the questionnaire completed by the Selling Shareholder at the Company's request in connection with this offering, the information regarding the Selling Shareholder in the Prospectus in the Section entitled "Principal and Selling Shareholders," and any other information relating to the Selling Shareholder furnished in writing by the Selling Shareholder expressly for use in the Registration Statement and Prospectus (collectively, the "Selling Shareholder Information") is, and on each Closing Date will be, true, correct, and complete, and does not, and on each Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(i) The principal reason for the participation by the Selling Shareholder in the proposed public offering is to permit diversification of the Selling Shareholder's investments;
(fj) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted 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;.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(hk) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 Power of Attorney are, and conditions of this Agreement on each Closing Date will be, true 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 eventcorrect.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power and authority to enter into 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 sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the "CUSTODY AGREEMENT") and the consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the Last Will and Testament of Alfred I. duPont, by which the Sellin▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇s established, or any agreement or other instrument binding upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder under this Agreement or the consummation of the transactions contemplated by this Custody Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution by the Underwriters sale of the Shares.
(c) The Selling Shareholder Shares has, and on the Selling Shareholder Option 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 in respect of, the Shares to be sold hereby;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 or a security entitlement in respect of such Shares.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have has been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and the consummation Delivery 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, if applicable) and compliance to be sold by the Selling Shareholder with his obligations under and payment therefor pursuant to this Agreement will pass valid title to such Shares, free 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 breach of, or default or Repayment Event under, or result in the creation or imposition clear of any lien, charge or encumbrance upon any property or assets adverse claim within the meaning of Section 8-102 of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentNew York Uniform Commercial Code, to which the Selling Shareholder is a party or by which he may be bound, or to which any each Underwriter who has purchased such Shares without notice of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material an adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;claim.
(f) 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 the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;.
(gi) Neither To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case to all material respects with the extentSecurities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, but only to the extentas amended or supplemented, that such if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(g) do not true and correct apply to statements or omissions in all material respects;the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(ih) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates the statements in negotiable form representing all the Base 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 Selling Shareholder Shares and legal matters, documents or proceedings referred to therein, fairly present the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 information called for with respect to him;
(l) The Shares represented by such legal matters, documents and proceedings and fairly summarize the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject matters referred 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 such executor or trustee 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 eventtherein.
Appears in 1 contract
Sources: Underwriting Agreement (St Joe Co)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such The deposit of the Underlying Shares by the Selling Shareholder will have, valid and unencumbered title to with the Shares on each Applicable Closing Date, Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power the execution and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered delivery by the Selling Shareholder on such Applicable Closing Date hereunder; of, and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered performance by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withof its obligations under, this Agreement will not contravene any provision of applicable law, or authorizationthe 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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by under this Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution sale of the Securities.
(c) The Selling Shareholder beneficially owns and on the Closing Date will 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 in respect of, the Underlying Shares to be represented by the Underwriters of ADSs to be sold by the Selling Shareholder Shares hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances; and the Selling Shareholder Option 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 sold hereby;delivered by the Selling Shareholder.
(d) The Selling Shareholder has the legal rightright and power, power and all authorizations authorization and approvals approval required by law law, to enter into the Custody Agreement (as defined in Section 4(j) hereof). This this Agreement and to sell, transfer and deliver the Custody Agreement have been duly executed and delivered Securities to be sold by the Selling Shareholder and each or a security entitlement in respect of such agreement is a legal, valid and binding agreement of the Selling Shareholder;Securities.
(e) The ADSs representing the Underlying Shares were deposited in accordance with the provisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of 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 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 and performance or consummation of this Agreement Agreement, (ii) the sale and the consummation delivery of the transactions 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 by this Agreement and 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.
(including the issuance and sale of such h) The Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result Information in the creation Registration Statement or imposition of any lien, charge or encumbrance upon any property or assets amendment thereof constitutes a fair summary of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;matters described therein.
(fi) The Selling Shareholder has not taken the power to submit, and will not takepursuant to Section 19(a) has, directly or indirectlyto the extent permitted by law, any action which is designed legally, validly, effectively and irrevocably submitted, to or which has constituted stabilization or manipulation the jurisdiction of the price 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 security 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 to facilitate the sale or resale of the Shares;
(g) Neither contained in Section 1 are not true and correct, is familiar with the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or any amendment information not disclosed in the Time of Sale Prospectus that has had, or supplement thereto contains 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 omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in (iii) the Registration Statement, any Preliminary 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 (vi) the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertainingdoes not contain and, as suchamended or supplemented, for use 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;
(h) The Selling Shareholder has no reason to believe , in the light of the circumstances under which they were made, not misleading, except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(j) do not true and correct apply to statements or omissions in all material respects;the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all None of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee should die or become incapacitatedof its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or if any such estate other person associated with 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 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 accordance 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 offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the 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 terms representations and conditions 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 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.
(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 Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless courts of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventNorway.
Appears in 1 contract
Sources: Underwriting Agreement (Telenor East Holding II As)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock 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, that are convertible into 2,300,000 Sharesif 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) Such Upon delivery of and payment for the Shares to be sold by the Company pursuant to this Agreement, good and marketable title to such 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 terminated concurrently therewith.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power legal right and authority to enter into this Agreement Agreement, and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunderin the manner provided herein, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 Agreement has been already obtained or may be required under the Act or the Rules and Regulationsduly authorized, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement this Agreement is a legal, valid and binding agreement of the Selling Shareholder;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 proceeding in equity or at law).
(ed) The execution, delivery and performance of this Agreement and the consummation of the transactions Other than as 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to to, or which has constituted 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 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;.
(ge) Neither The execution, delivery and performance of this Agreement by the Selling Shareholder, compliance by the Selling Shareholder with all the provisions hereof and the consummation of the 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 (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 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.
(f) Such parts of the Registration StatementStatement 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 Preliminary ProspectusOption Closing Date, the Prospectus or any amendment or supplement thereto contains if applicable), contain any untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein 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, in each case to the extent, but only to the extent, that such untrue statement or omission was made if there is any change in the Registration Statementinformation referred to in paragraph 7(f) above, any Preliminary except as contemplated in the Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;will immediately notify you of such change.
(h) The To the best knowledge of the Selling Shareholder has no reason to believe that Shareholder, the representations and warranties of the Company set forth contained in Section 3 6 hereof are not true and correct in all material respects;
(i) The correct; the Selling Shareholder will deliver has reviewed and is familiar with the Registration Statement as filed with the Commission and any preliminary prospectuses contained therein and has no knowledge of any material fact, condition or information not disclosed in such preliminary prospectus which has adversely affected or could adversely affect the condition, financial or otherwise, or the earnings, business affairs, or business prospects of the Company and its subsidiaries considered as one enterprise; to you prior to or 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 negotiable form representing all the best knowledge of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody AgreementShareholder, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is such preliminary prospectuses do not subject to contain 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 untrue statement of a partnership material fact or corporation, by omit to state any material fact necessary to make the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee 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 statements therein not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventmisleading.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares each Underwriter as set forth opposite his name on Schedule I hereto, to each Underwriter that:below in this Section 2.
(a) The This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such Immediately following the IPO Conversion and the conversion of multiple voting shares into subordinate voting shares, such Selling Shareholder will have, shall have good and valid and unencumbered title to the Shares on each Applicable Closing Date, Securities to be delivered sold by the Selling Shareholder on such Applicable Closing Date it pursuant to this Agreement, free and 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 Applicable Closing Date hereunder; and upon the delivery clear of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Dateall Liens.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required Upon payment for the performance Securities to be sold by the such Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by pursuant to this Agreement, except delivery of such Securities, as has been already obtained directed by the Representatives, to Cede & Co. (“Cede”) or such other nominee as may be required designated by The Depository Trust Company (“DTC”) or CDS Clearing and Depository Services Inc. (“CDS”), as applicable, registration of such Securities in the name of Cede or such other nominee and the crediting of such Securities on the books of DTC or CDS to the securities account of the Underwriters (assuming that neither DTC, CDS nor 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 Securities), (A) DTC or CDS, as applicable, shall be a “protected purchaser” of such Securities within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the Act UCC, the Underwriters will acquire a valid security entitlement in respect of such Securities, (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such 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, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Securities will have been registered in the name of Cede or another nominee designated by DTC or CDS, in each case on the Rules and RegulationsCompany’s share registry in accordance with its articles, state securities laws or the bylaws and rules applicable law, (y) DTC or CDS, as applicable, will be registered as a “clearing corporation” within the meaning of Section 8-102 of the NASD in connection with UCC and (z) appropriate entry to the purchase and distribution by account of the Underwriters on the records of DTC or CDS, as applicable, will have been made pursuant to the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;UCC.
(d) The Selling Shareholder has the legal right, power execution and all authorizations and approvals required delivery by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares of, and the performance by such Selling Shareholder Option Sharesof its obligations under, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreementwill not contravene or conflict with, do not and will notresult in a breach of, whether or constitute a default (or, with or without the giving of notice or lapse of time or bothtime, conflict with or constitute a breach of, or default or Repayment Event would be in default) under, or result in require the creation or imposition consent of any lienother party to, charge or encumbrance upon any property or assets of (i) the Selling Shareholder pursuant to any contract[articles, indentureby-laws, mortgage, deed of trust, loan or credit limited partnership agreement, notelimited liability company agreement or other organizational documents], lease or as the case may be, of such Selling Shareholder, (ii) any other agreements agreement or instrument, instrument to which the such Selling Shareholder is a party or by which he may be bound, it is bound or to which (iii) any provision of the property applicable law or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ decree or decree, regulation applicable to such Selling Shareholder of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body or foreign, 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, the Disclosure Package and the Prospectuses is, and on the Closing Date will be, true, correct and complete in all material respects, and did not, and as of the Closing Date will not, contain any respective propertiesuntrue statement of a material fact or omit to state any material fact necessary to make such information not misleading, assets or operations;it being understood and agreed that the only such information consists of the information with respect to such Selling Shareholder under the caption “Principal and Selling Shareholders” in the Registration Statement, the Pricing Disclosure Package and the Prospectuses (such information, the “Selling Shareholder Information”).
(f) The 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 action which that is designed to or which 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 Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 Securities. Any certificate signed by or on behalf of the such Selling Shareholder and delivered to the Representatives or to counsel for the Underwriters in accordance connection with the terms and conditions offering of this Agreement and the Custody Agreement and Securities shall be deemed a representation and warranty by such Selling Shareholder to the Underwriters as valid as if to the matters covered thereby with respect to such death, incapacity, termination, dissolution or other event had not occurred, regardless Selling Shareholder. Such Selling Shareholder has a reasonable basis for making each of whether or not the Custodian shall have received notice 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 death, incapacity, termination, dissolution or other eventreliance.
Appears in 1 contract
Sources: Underwriting Agreement (GFL Environmental Holdings Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself the Company and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares each Underwriter as set forth opposite his name on Schedule I hereto, to each Underwriter that: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 Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement Agreement, and to sell, assign, transfer and deliver the Shares Offered Securities to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; and and, upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares Offered Securities to be delivered sold by the Selling Shareholder pursuant to this Agreement, delivery of such Offered Securities, as directed by the Representative, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Offered Securities in the name of Cede or such other nominee and the crediting of such Offered Securities on the books of DTC to the securities account of the Underwriters (assuming that neither DTC nor 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 Applicable Closing DateOffered Securities), (A) DTC shall be a “protected purchaser” of such 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 Offered Securities and (C) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such 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 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 registry in accordance with its certificate of 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 entry to the account of the Underwriters on the records of DTC will have been made pursuant to the UCC.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree The execution and delivery by the Selling Shareholder of, any court or governmental authority or agency is necessary or required for and the performance by the Selling Shareholder of his its obligations hereunderunder, 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and will not contravene or conflict with, result in the Registration Statement a breach of, or constitute a default (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesor, if applicable) and 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 bothtime, conflict with or constitute a breach of, or default or Repayment Event would be in default) under, or result in require the creation or imposition consent of any lien, charge other party to (i) any agreement or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, it is bound or under which it is entitled to which any right or benefit including any pledge of the property Offered Securities or assets (ii) any provision of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges applicable law or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ decree or decree, regulation applicable to the Selling Shareholder of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body or foreign, 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, the General Disclosure Package or the Final Prospectus is, and on the Closing Date will be, true, correct and complete in all material respects, and on the Closing Date will not, contain any respective propertiesuntrue statement of a material fact or omit to state any material fact necessary to make such information not misleading, assets or operations;it being understood and agreed that the only such information consists of the information with respect to the Selling Shareholder under the caption “Selling 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 which that is designed to or which 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 Shares;Offered Securities.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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;
a United States person (las the term is defined in 7701(a)(30) 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 Internal Revenue Code of 1986, as amended) 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 such executor or trustee 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 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 accordance connection with the terms and conditions offering of this Agreement and the Custody Agreement and Offered Securities shall be deemed a representation and warranty by the Selling Shareholder to the Underwriters as valid as if 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 assistant 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 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 eventreliance.
Appears in 1 contract
Sources: Underwriting Agreement (Fiserv Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power and authority to enter into this Agreement and the Letter of Transmittal and Custody Agreement signed by the Selling Shareholder and Wachovia Bank, N.A., as Custodian, relating to sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the “Custody Agreement”) and upon the delivery consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the Last Will and payment for such Shares on each Applicable Closing Date hereunderTestament of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by which the Selling Shareholder on such Applicable Closing Date.
(c) No filing withwas established, or authorizationany 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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder under this Agreement or the consummation of the transactions contemplated by this Custody Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution by the Underwriters sale of the Shares.
(c) The Selling Shareholder Shares has, and on the Selling Shareholder Option 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 in respect of, the Shares to be sold hereby;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 or a security entitlement in respect of such Shares.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have has been duly authorized and when executed and delivered by the Selling Shareholder and each such agreement is will be a legal, valid and binding agreement of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and the consummation Delivery 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, if applicable) and compliance to be sold by the Selling Shareholder with his obligations under and payment therefor pursuant to this Agreement will pass valid title to such Shares, free 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 breach of, or default or Repayment Event under, or result in the creation or imposition clear of any lien, charge or encumbrance upon any property or assets adverse claim within the meaning of Section 8-102 of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentNew York Uniform Commercial Code, to which the Selling Shareholder is a party or by which he may be bound, or to which any each Underwriter who has purchased such Shares without notice of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material an adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;claim.
(f) 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 the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;.
(gi) Neither To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case to all material respects with the extentSecurities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, but only to the extentas amended or supplemented, that such if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(g) do not true and correct apply to statements or omissions in all material respects;the Registration Statement or the Prospectus based upon information relating to either Underwriter furnished to the Company in writing by such Underwriter expressly for use therein.
(ih) The the statements in the 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 will deliver to you prior to or 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 negotiable form representing all Shareholder” insofar as such statements constitute summaries of the Selling Shareholder Shares and legal matters, documents or proceedings referred to therein, fairly present the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 information called for with respect to him;
(l) The Shares represented by such legal matters, documents and proceedings and fairly summarize the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject matters referred 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 such executor or trustee 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 eventtherein.
Appears in 1 contract
Sources: Underwriting Agreement (Dupont Alfred I Testamentary Trust)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representshereby represents and warrants to each Underwriter as of the date hereof, warrants and covenantsas of the Firm Shares Closing Date and, solely with respect to himself and the number of Selling Shareholder Shares and if the Selling Shareholder is selling Option Shares, as of each such Option Shares set forth opposite his name on Schedule I heretoClosing Date (if any), to each Underwriter thatas follows:
(a) The This Agreement and the Lock-Up Agreement, have each been duly authorized, executed and delivered by the Selling Shareholder has and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and unencumbered title to 2,300,000 shares of Class A Common Stock legally binding agreement of the CompanySelling Shareholder, that are convertible into 2,300,000 Sharesenforceable against the Selling Shareholder in accordance with their respective terms.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into of this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by under this Agreement, except such as has been already obtained or may be required under including the Act or the Rules sale and Regulations, state securities laws or the bylaws and rules delivery of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) herein and compliance by the Selling Shareholder with his its obligations under this Agreement and the Custody Agreementhereunder, do not and will not, whether with or without the giving of notice or lapse the passage of time or both, (i) violate or contravene any provision of the charter or 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, (ii) conflict with or constitute a breach of, or default or Repayment Event 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 contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he the Selling Shareholder may be bound, bound or to which any of the property or assets of the Selling Shareholder is subject or (except for such conflictsiii) require any consent, breachesapproval, defaults, liens, charges authorization or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in order of or registration or filing with any violation of any applicable law, statute, rule, regulation, judgment, order, writ court or decree, of any government, government instrumentality governmental agency or court, domestic or foreign, body having jurisdiction over it, except such as have been obtained and made under the Securities Act and may be required by the Blue Sky laws of the various states in connection with the offer and sale of the Shares 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 the Shares to be sold by the Selling Shareholder free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any respective propertiesrestriction on transfer, assets 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, power and authority, and any approval required by law, to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder in the manner provided by this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, assuming each Underwriter has no notice of any adverse claim, the several Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, mortgage, pledge, security interest or operations;other encumbrance.
(f) All information relating to the Selling Shareholder furnished in writing by the Selling Shareholder expressly for use in the Registration Statement, Prospectus and any Issuer Free Writing Prospectus is, and on each Closing Date will be, true, correct, and complete, and does not, and on each Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(g) The Selling Shareholder has reviewed the Registration Statement, Prospectus and any Issuer Free Writing Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that: (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or 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, 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 and will not taketaken, directly or indirectly, any action which is designed to or which has constituted 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;.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(hj) The Selling Shareholder has no reason to believe actual knowledge that the representations and warranties any representation or warranty of the Company set forth in Section 3 are 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 true disclosed in the General Disclosure Package and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to the Prospectus or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (any supplement thereto which has adversely affected or other applicable Form W-8;
(j) Certificates in negotiable form representing all may adversely affect the businesses of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");or any of its subsidiaries.
(k) The Selling Shareholder is has not subject to any order prepared, used or directive ofreferred to, nor will it prepare, use or party to any agreement withrefer to, any regulatory agency having jurisdiction with respect to him;“free writing prospectus” (as defined in Rule 405 of the Rules).
(l) The Shares represented by Selling Shareholder has the certificates held 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 custody 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 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 Shareholder.
(m) None of the Selling Shareholder hereunder shall not be terminated by operation of lawor its subsidiaries or affiliates, whether by or any director, officer, or employee thereof, or, to the death Selling Shareholder’s knowledge, any agent or incapacity representative of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor of its subsidiaries or trustee affiliates 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 person associated with or any such executor or trustee 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 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 accordance 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 terms representations and conditions warranties contained herein. No part of the proceeds of the offering will be used, directly or indirectly, in violation 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) The operations of the Selling Shareholder are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws and the Selling Shareholder 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 aggregate 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 proceeds of this Agreement and the Custody Agreement and shall be as valid as if offering, or lend, contribute or otherwise make available such deathproceeds to any subsidiary, incapacity, termination, dissolution joint venture partner or other event had 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 occurredengaged in any dealings or transactions with or for the benefit of a Sanctioned Person, regardless 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 whether 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 Custodian shall have received notice 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 deathplan or account under Section 3(42) of ERISA, incapacity29 C.F.R. 2510.3-101, termination, dissolution or other eventotherwise.
Appears in 1 contract
Sources: Underwriting Agreement (Corporacion America Airports S.A.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has is the lawful owner of the Shares to be sold by it pursuant to this Agreement and has, and on the Closing Date or the Additional Closing Date, as applicable, will have, good, valid and unencumbered clear title to 2,300,000 shares such Shares, free of Class A Common Stock of the Companyany and all restrictions on transfer, that are convertible into 2,300,000 Shares.liens, encumbrances, security interests, equities, claims and other defects whatsoever;
(b) Such The Selling Shareholder has, and on the Closing Date or the Additional Closing Date, as applicable, will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full legal right, power and authority authority, and all authorizations and approvals required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by it in the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.manner provided herein;
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have has been duly executed and delivered by or on behalf of the Selling Shareholder and each such agreement is a its legal, valid and binding agreement agreement;
(d) Upon delivery of and payment for the Shares to be sold by the Selling ShareholderShareholder pursuant to this Agreement, good, valid and clear title to such 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 and the 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 SharesShareholder, if applicable) and the compliance by the Selling Shareholder with his obligations under this Agreement all the provisions hereof and the Custody Agreementconsummation by the Selling Shareholder of the transactions contemplated hereby will not (i) require the Selling Shareholder to obtain any consent, do not and approval, authorization or other order of, or qualification with, any court or governmental body or agency (except as such may be required under the securities or blue sky laws of the various states or as have been or will notbe obtained), whether with or without the giving of notice or lapse of time or both, (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default or Repayment Event under, or result in the creation or imposition of any lienindenture, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indentureloan agreement, mortgage, deed of trust, loan lease, license or credit agreement, note, lease other agreement or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder or any of its properties is subject bound or (except for such conflictsiii) to its knowledge, breaches, defaults, liens, charges violate or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of conflict with any applicable federal, state, local or foreign law, statute, rule, regulation, regulation or judgment, order, writ order or decree, decree of any government, government instrumentality court or court, domestic any governmental body or foreign, agency having jurisdiction over the Selling Shareholder or any respective properties, assets or operationsproperty of the Selling Shareholder;
(f) The information in the Registration Statement and Prospectus does not, and will not on the Closing Date or the Additional Closing Date, 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 and the Selling Shareholder 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 taken, and will not take, directly or indirectly, any action which is designed to to, or which has constituted 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;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case Shares pursuant to the extentdistribution contemplated by this Agreement, but only to and, other than as permitted by the extentAct, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares; and
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 Each certificate signed by or on behalf of the Selling Shareholder in accordance with and delivered to the terms and conditions Underwriters or counsel of this Agreement and the Custody Agreement and Underwriters shall be deemed to be a representation and warranty by the Selling Shareholder to the Underwriters as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not to the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventmatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Each Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Such Selling Shareholder has now has, and on any Option Closing Date will have, valid and unencumbered marketable title to 2,300,000 shares the Shares to be sold by such Selling Shareholder, free and clear of Class A Common Stock of the Companyany lien, that are convertible into 2,300,000 Sharesclaim, 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, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full legal right, power and authority to enter into this Agreement authorization, and any approval required by law, to sell, assign, assign transfer and deliver such Shares in the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; manner provided in this Agreement, and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered marketable title to the such Shares to be delivered by the Selling Shareholder on such Applicable Closing Datefree and clear of any lien, claim, security interest, or other encumbrance.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly authorized, executed and delivered by the or on behalf of such Selling Shareholder and each such agreement is a legal, are the valid and binding agreement agreements of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their terms, except to the Selling Shareholder;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.
(ed) The execution, Neither the execution and delivery and performance of this Agreement and or the Custody Agreement by or on behalf of such Selling Shareholder, nor the consummation of the transactions herein or therein contemplated by this Agreement and in the Registration Statement (including the issuance and sale or on behalf of such Selling Shareholder Shares requires any consent, approval, authorization or order of, or filing or registration with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be required under the Act and the Selling Shareholder Option Exchange Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares), if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and or conflicts or will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitutes or will constitute a breach of, or default or Repayment Event under, or result in the creation violates or imposition of will violate, any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease indenture or any other agreements or instrument, instrument to which the such Selling Shareholder is a party or by which he such Selling Shareholder is or may be bound, or to which any of the such Selling Shareholder's property or assets of the Selling Shareholder is subject (except for such conflictssubject, breachesor any statute, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, ruling, judgment, orderinjunction, writ order or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the decree applicable to such Selling Shareholder or to any respective properties, property or assets or operations;of such Selling Shareholder.
(fe) The Registration Statement and the Prospectus, insofar as they relate to such Selling Shareholder has Shareholder, do not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any contain an untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein not misleading, in each case .
(f) Such Selling Shareholder does not have any knowledge or any reason to the extent, but only to the extent, believe that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus (or any amendment or supplement thereto in reliance upon thereto) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) The representations and in conformity with written information furnished to the Company by the warranties of such Selling Shareholder pertainingin the Custody Agreement are, as suchand on the Closing Date and any Option Closing Date will be, for use therein;true and correct.
(h) The Such Selling Shareholder has no reason not taken, directly or indirectly, any action designed to believe or that the representations and warranties might reasonably be expected to cause or result in stabilization or manipulation of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all price of the Selling Shareholder Shares and Common Stock to facilitate the Selling Shareholder Option Shares to be sold by sale or resale of the Selling Shareholder have been placed in custody under a Custody AgreementShares, except for the lock-up arrangements described in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 eventProspectus.
Appears in 1 contract
Sources: Underwriting Agreement (International Speedway Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power this Agreement, the Custody Agreement signed by the Selling Shareholder and authority American Stock Transfer & Trust Company, LLC, as Custodian, relating to enter into this Agreement and to sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the “Custody Agreement”) and upon the delivery Power of and payment for such Shares on each Applicable Closing Date hereunder, Attorney appointing certain individuals as the several Underwriters will acquire valid and unencumbered title Selling Shareholder’s attorneys-in-fact to the Shares extent set forth therein, relating to be delivered the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Shareholder on such Applicable Closing Date.
(cif the Selling Shareholder is a corporation) No filing withor the limited partnership agreement or certificate of limited partnership (if the Selling Shareholder is a limited partnership), or authorizationany 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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement 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 offering, issuance or offer and sale of the Shares.
(c) The Selling Shareholder Shares hereunder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the consummation meaning of Section 8-501 of the transactions contemplated by this AgreementNew York Uniform Commercial Code in respect of, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;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 Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, are valid and binding agreement agreements of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and Upon payment for the consummation of the transactions contemplated Shares to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractthis Agreement, indenturedelivery of such Shares, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentas directed by the Underwriters, to which 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 is a party 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 which he may be boundDTC, 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 would not have a material adverse effect in each case on the transactions contemplated herein)Company’s share registry in accordance with its certificate of incorporation, nor will such action result in any violation of any bylaws and applicable law, statute, rule, regulation, judgment, order, writ or decree, (y) DTC will be registered as a “clearing corporation” within the meaning of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Section 8-102 of the Selling Shareholder or any respective properties, assets or operations;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 not taken no reason to believe that the representations and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security 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 facilitate the sale or resale of the Shares;sell its Shares pursuant to this Agreement.
(g) Neither (i) the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 case 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 (v) 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(g) are limited to statements or omissions made in reliance upon information relating to the extent, but only Selling Shareholder furnished to the extent, that such untrue statement or omission was made Company in writing by the Selling Shareholder expressly for use in the Registration Statement, any Preliminary the Time of Sale Prospectus, the Prospectus or any amendment amendments or supplement thereto in reliance upon and in conformity with written information furnished to the Company by supplements thereto.
(i) None of the Selling Shareholder pertainingor any of its subsidiaries, as suchor, for use therein;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:
(hA) 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 no reason 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 believe that 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 Company set forth offering in Section 3 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 not true and correct have been conducted at all times in material compliance with all material respects;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 will deliver represents and warrants that it is not (i) an employee benefit plan subject to you prior Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to or at each Applicable Closing Date a properly completed and executed Section 4975 of the Internal Revenue Service Form W-8BEN Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or other applicable Form W-8;
(jaccount under Section 3(42) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody AgreementERISA, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of29 C.F.R. 2510.3-101, 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 such executor or trustee 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 eventotherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power and authority to enter into 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 sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the "CUSTODY AGREEMENT") and upon the delivery consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the Last Will and payment for such Shares on each Applicable Closing Date hereunderTestament of Alfred I. duPont, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by which the Selling Shareholder on such Applicable Closing Date.
(c) No filing withwas establ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇reement or authorizationother 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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder under this Agreement or the consummation of the transactions contemplated by this Custody Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution by the Underwriters sale of the Shares.
(c) The Selling Shareholder Shares has, and on the Selling Shareholder Option 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 in respect of, the Shares to be sold hereby;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 or a security entitlement in respect of such Shares.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have has been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and the consummation Delivery 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, if applicable) and compliance to be sold by the Selling Shareholder with his obligations under and payment therefor pursuant to this Agreement will pass valid title to such Shares, free 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 breach of, or default or Repayment Event under, or result in the creation or imposition clear of any lien, charge or encumbrance upon any property or assets adverse claim within the meaning of Section 8-102 of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentNew York Uniform Commercial Code, to which the Selling Shareholder is a party or by which he may be bound, or to which any each Underwriter who has purchased such Shares without notice of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material an adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;claim.
(f) 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 the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;.
(gi) Neither To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case to all material respects with the extentSecurities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, but only to the extentas amended or supplemented, that such if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(g) do not true and correct apply to statements or omissions in all material respects;the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(ih) The the statements in the Prospectus under the captions "Summary--Alfred I. duPont Testamentary Trust", "Alfred I. duPont Testa▇▇▇▇▇▇▇ ▇▇▇▇▇," and "Selling Shareholder will deliver to you prior to or 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 negotiable form representing all Shareholde▇" ▇▇▇▇▇▇▇ ▇▇ ▇▇ch statements constitute summaries of the Selling Shareholder Shares and legal matters, documents or proceedings referred to therein, fairly present the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 information called for with respect to him;
(l) The Shares represented by such legal matters, documents and proceedings and fairly summarize the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject matters referred 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 such executor or trustee 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 eventtherein.
Appears in 1 contract
Sources: Underwriting Agreement (St Joe Co)
Representations and Warranties of the Selling Shareholder. The Such Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such Selling Shareholder has, and on the Closing Date will have, valid and unencumbered 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 on each Applicable Closing Date, to be delivered sold by the such Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShares.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required Upon payment for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;by 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, 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 registry in accordance with its certificate of 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) The Such Selling Shareholder has no reason to believe that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j) hereof). This Agreement 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 Custody Agreement have been duly executed Prospectus and delivered by the Selling Shareholder and each such agreement is a legalhas no knowledge of any material fact, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and condition or information not disclosed in the Registration Statement (including Time of Sale Prospectus or the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 Prospectus that would not have has had a material adverse effect on the transactions contemplated herein)Company and the Businesses, nor will such action result in any violation of 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 taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or any respective properties, assets or operations;the Businesses which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(fe) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation (i) Each part of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectuswhen such part became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 6), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made 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 (iii) 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 Preliminary 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 3(e) are limited to statements or omissions made in reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendment amendments or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 eventsupplements thereto.
Appears in 1 contract
Sources: Underwriting Agreement (Compass Diversified Holdings)
Representations and Warranties of the Selling Shareholder. The --------------------------------------------------------- Selling Shareholder representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself each of the several Underwriters and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Company that:
(a) A. The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement, the Power of Attorney and the Custody Agreement (as hereinafter defined) and to sell, assign, transfer and deliver to the Underwriters the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the execution and delivery of and payment for such Shares on each Applicable Closing Date hereunderthis Agreement, the several Underwriters will acquire 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 each constitutes the valid and unencumbered title to the Shares to be delivered by binding agreement of the Selling Shareholder on enforceable against the Selling Shareholder in accordance with its terms, subject, as to enforcement, to 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 may be limited by federal or state securities laws or public policy underlying such Applicable Closing Datelaws.
(c) C. No filing with, or authorizationconsent, approval, consentauthorization, licenseorder or declaration of or from, order, or registration, qualification or decree offiling with, any court or governmental authority agency or agency body is necessary or required for the performance sale of the Shares to be sold by the Selling Shareholder of his obligations 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, the Power of Attorney or the Custody Agreement, except the registration of such Shares 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 has been already obtained or may be required under the Act or the Rules and Regulations, state securities or blue sky laws or the bylaws and rules of the NASD in connection with the purchase offer, sale and distribution of such Shares by the Underwriters Underwriters.
D. The sale of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The by such Selling Shareholder has and the legal rightperformance of this Agreement, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement Power of Attorney and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions herein and therein contemplated by this Agreement and in the Registration Statement will not conflict with, or (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 the passage of time or both) result in a breach or violation of any of the terms or provisions of, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements agreement or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property its properties or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein)subject, nor will such action result in conflict with or violate any violation provision of the charter or bylaws or other governing instruments of the Selling Shareholder, if any, or any statute, rule or regulation or any order, judgment or decree of any applicable law, statute, rule, regulation, judgment, order, writ court or decree, of any government, government instrumentality governmental agency or court, domestic or foreign, body having jurisdiction over the Selling Shareholder or any respective propertiesof the Selling Shareholder's properties or assets.
E. At the Closing Time (as defined in Section 3 hereof), assets the Selling Shareholder will have good and valid title to the 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 operations;claims of any nature whatsoever, will pass to the several Underwriters.
(f) F. The Selling Shareholder has not taken and will not take(i) taken, directly or indirectly, any action which is designed to cause or which 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;
Shares or (gii) Neither since the filing of the Registration StatementStatement (A) sold, 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, Prospectus was filed with the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact Commission (i) it contained all statements required to be stated therein or necessary to make 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 therein not 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 or any amendment or supplement thereto as are made in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertainingfor use therein did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. When the Registration Statement or 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 suchthe case may be, for use therein;
(hi) The it contained or will contain all statements required to be stated therein regarding the Selling Shareholder has no reason to believe that the representations in accordance with, and warranties of the Company set forth in Section 3 are not true and correct complied or will comply in all material respects;
respects regarding the Selling 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 amendment or supplement 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 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 each Applicable the Closing Date Time (as hereinafter defined) a properly completed and executed Internal Revenue Service Form W-8BEN United States Treasury Department form W-9 (or other applicable Form W-8;
(j) Certificates form or statement specified by Treasury Department regulations in lieu thereof). The Selling Shareholder represents and warrants that the certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a custody agreement (the "Custody Agreement"), in the form heretofore furnished to you (the "CUSTODY AGREEMENT")and approved by you, duly executed and delivered by the such Selling Shareholder to American Stock Transfer & Trust Company Union Planters Bank, N.A. as custodian (the "CUSTODIANCustodian");
, and that such Selling Shareholder has duly executed and delivered a power of attorney (kthe "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 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 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 hereunder, and that the arrangements made by the such Selling Shareholder for such custody custody, and the appointment by the Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to irrevocable. The Selling Shareholder specifically agrees that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity dissolution 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 corporationShareholder, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee 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 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on of, and the performance by such Applicable Closing Date and full rightSelling Shareholder of its obligations under, power and authority to enter into this Agreement and to sell, assign, transfer the Power of Attorney and deliver the Shares to be delivered by Custody Agreement of the Selling Shareholder on such Applicable Closing Date hereunder; and will not contravene any provision of applicable law, or any agreement or other instrument binding upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor, to the Selling Shareholder's knowledge, any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement 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 offeringoffer and sale of the Shares.
(c) The Selling Shareholder has, issuance or sale and on the Closing Date will have, valid title to the Shares to be sold by the Selling Shareholder 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 Shares hereunder or and to sell, transfer and deliver the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;by the Selling Shareholder.
(d) The Shares to be sold by the Selling Shareholder has the legal right, power and all authorizations and approvals required by law pursuant to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody 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 each such agreement is a legal, 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.
(ef) The execution, delivery and performance of this Agreement and the consummation Delivery of the transactions contemplated Shares to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to this Agreement will pass title to such Shares free and clear of any contractsecurity interests, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaultsclaims, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;equities and other encumbrances.
(fi) The Selling Shareholder has not taken 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 not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the price of any security of the Company to facilitate the sale or resale of the Shares;
Commission thereunder, (gii) Neither the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case to all material respects with the extentSecurities Act and the applicable rules and regulations of the Commission thereunder and (iv) the Prospectus does not contain and, but only to the extentas amended or supplemented, that such if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(g) do not true and correct in all material respects;
(i) The Selling Shareholder will deliver apply to you prior to statements or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, omissions in the form heretofore Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 expressly 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 such executor or trustee 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 eventuse therein.
Appears in 1 contract
Sources: Underwriting Agreement (Mastec Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to the Underwriters as of the Applicable Time (as defined above) and as each of the Closing Date and Option Closing Date, warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and as follows:
3.1. the Selling Shareholder Option Shares set forth opposite his name on Schedule I heretoStockholder is validly existing and, to each Underwriter that:
(a) the extent such concept exists in the relevant jurisdiction, in good standing under the laws of the jurisdiction of its organization. The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement and the Power of Attorney to sell, assign, transfer which it is a party. All authorizations and deliver consents necessary for the Shares to be delivered execution and delivery by the Selling Shareholder of the Power of Attorney, and for the execution of this Agreement on such Applicable behalf of the Selling Shareholder, have been given. The Power of Attorney and this Agreement have been duly authorized, executed, and delivered by or on behalf of the Selling Shareholder and constitute a valid and binding agreement of the Selling Shareholder and are enforceable against the Selling Shareholder in accordance with the terms thereof and hereof, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 6.1 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
3.2. the Selling Shareholder now has, and on the Closing Date and any Option Closing Date will have, (i) good and marketable title to the Firm Shares to be sold by the Selling Shareholder hereunder; , free and upon clear of all liens, encumbrances, and claims whatsoever (other than as may exist pursuant to the Power of Attorney), and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer, and deliver such Firm 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 such Firm Shares on each Applicable Closing Date hereunder, the several Underwriters Selling Shareholder will acquire valid deliver good and unencumbered marketable title thereto, free and clear of any pledge, lien, encumbrance, security interest, or other claim;
3.3. on the Closing Date and any Option 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 Firm Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by to the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement hereunder will have been duly executed and delivered fully paid or provided for by the Selling Shareholder and each all laws imposing such agreement is a legal, valid and binding agreement of the Selling Shareholdertaxes will have been fully complied with;
(e) The execution, delivery and 3.4. the performance of this Agreement and the consummation of the transactions contemplated by this Agreement and herein will not conflict with, or result in the Registration Statement any breach of, or constitute a default under (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesnor constitute any event which with notice, if applicable) and 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 time, or both, conflict with or both would constitute a breach of, or default or Repayment Event under), or result in the creation or imposition any provision of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractlicense, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements agreement or instrument, instrument to which the Selling Shareholder is a party or by which he it or its properties may be boundbound or affected, or under any federal, state, local, or foreign law, regulation or rule or any decree, judgment, or order applicable to which the Selling Shareholder; or result in the creation or imposition of any of the lien, charge, claim, or encumbrance upon any property or assets asset of the Selling Shareholder Shareholder;
3.5. no approval, authorization, consent, or order of or filing with any federal, state, local, or foreign governmental or regulatory commission, board, body, authority, or agency is subject (except for such conflictsrequired in connection with the Selling Shareholder’s execution, breachesdelivery, defaultsand performance of this Agreement, liens, charges or encumbrances that would not have a material adverse effect on its consummation of the transactions contemplated herein), nor and its sale and delivery of the Firm Shares, other than (i) such as have been obtained, or will have been obtained by the Closing Date and any Option Closing Date, as the case may be, under the Securities Act and the Exchange Act, (ii) such action result approvals as have been obtained in connection with the approval of the quotation of the Firm Shares on the Exchange, and (iii) any violation necessary qualification under the securities or blue sky laws of 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 various jurisdictions in which the Firm Shares are being offered by the Underwriters;
3.6. all material information with respect to the Selling Shareholder contained in each of the Registration Statement, the Prospectus, and the Pricing Disclosure Package (as amended or supplemented, if the Company shall have filed with the Commission any respective propertiesamendment or supplement thereto) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Securities Act Regulations, assets contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Securities Act Regulations, and does not and will not contain an untrue statement of a material fact or operationsomit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(f) The 3.7. the Selling Shareholder has not taken distributed and will not takedistribute any “free writing prospectus” (as defined in Rule 405 of the Securities Act Regulations), Preliminary Prospectus, the Prospectus, or any other offering material in connection with the offering and sale of the Firm Shares, except for any such distribution to which the Representative has consented in advance in writing; and the Selling Shareholder has not taken, directly or indirectly, any action intended, or which is designed might reasonably be expected, to cause or result in, under the Securities Act, the Securities Act Regulations, or otherwise, or which has constituted stabilization constituted, stabilization, or manipulation of the price of any security of the Company to facilitate the sale or resale of the Firm Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by 3.8. the Selling Shareholder pertaininghas not relied upon the Representative or the Company or legal counsel for the Representative or the Company for any legal, as suchtax, for use thereinor accounting advice in connection with the offering and sale of the Firm Shares;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of 3.9. the Selling Shareholder Shares 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 described in both the Prospectus and the Pricing Disclosure Package;
3.10. the Selling Shareholder Option 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 Firm Shares that are to be sold by the Selling Shareholder have been placed in custody under a Custody Company to the Underwriters pursuant to this Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed ; and delivered by the Selling Shareholder does not own any warrants, options, or similar rights to American Stock Transfer & Trust Company as custodian (acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options, or other securities from the "CUSTODIAN")Company, other than those described in the Registration Statement and the Prospectus;
(k) The 3.11. except as otherwise disclosed to the Underwriters in writing, the Selling Shareholder is not subject to a member of or an affiliate of or associated with any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to himmember of FINRA;
(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 such executor or trustee 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 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered 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 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 Shareholder 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 Applicable 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 state or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date and 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 Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire and valid and unencumbered title to or a valid security entitlement (within the meaning of Section 8-501 of the New York Uniform Commercial Code) in respect of such Shares, free and clear of all security interests, claims, liens, equities or other encumbrances.
(d) Upon payment for the Shares to be delivered 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 Applicable Closing DateUnderwriter 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 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.
(ce) No filing with(i) Each document, if any, filed or authorizationto 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, approval(ii) each part of the Registration Statement, consentwhen such part became effective, licensedid not contain, orderand each such part, registrationas amended or supplemented, qualification if applicable, will not contain any untrue statement of a material fact or decree ofomit 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 court untrue statement of a material fact or governmental authority omit to state a material fact required to be stated therein or agency is necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or required for supplemented, if applicable, will comply in all material respects with the performance by Securities Act and the Selling Shareholder applicable rules and regulations of his obligations hereunderthe 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, issuance or sale of offering when the Selling Shareholder Shares hereunder or Prospectus is not yet available to prospective purchasers and at the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement Closing Date (as defined in Section 4(j5), 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) hereof). This Agreement 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 (vii) the Custody Agreement have been duly executed 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 delivered warranties set forth in this paragraph 2(e) are limited to statements or omissions 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 and each such agreement is a legal, valid and binding agreement consists of the following information in the Prospectus: the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement ’s name and the consummation information relating to the principal shareholders and Selling Shareholder’s holdings of the transactions contemplated by this Agreement and Shares set forth in the Registration Statement (including the issuance and sale of such section entitled “Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;Shareholder”.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which that is designed to or which has constituted that might reasonably be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) 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 order such plan or directive ofaccount under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, 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 such executor or trustee 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 eventotherwise.
Appears in 1 contract
Sources: Underwriting Agreement (Atento S.A.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself each of the Underwriters on the date hereof and on the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Closing Date that:
(a) The Such Selling Shareholder is the record and beneficial owner of and has valid and unencumbered marketable title to 2,300,000 shares the Firm Shares to be sold by such Selling Shareholder, free and clear of Class A Common Stock all security interests, claims, liens, restrictions on transferability, legends, proxies, equities or other encumbrances, other than the Custody Agreement (as defined below). Upon delivery of and payment for the Firm Shares to be sold by such Selling Shareholder hereunder, the several Underwriters will acquire valid and marketable 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, that are convertible into 2,300,000 Sharesand 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 Prospectus.
(b) Such Selling Shareholder will have, valid and unencumbered title to has the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Firm Shares to be delivered sold by the such Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShareholder.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 This Agreement has been already obtained or may be required under the Act or the Rules and Regulationsduly authorized, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the or on behalf of such Selling Shareholder and each such agreement is constitutes a legal, valid and binding agreement of the such Selling 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) 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 transfer of title thereto, to the Underwriters, free of any legend, restriction on transferability, proxy, lien or claim, whatsoever. The executionCustody Agreement 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.
(f) The execution and delivery of this Agreement, the Power of Attorney and the Custody Agreement, and the performance of this Agreement the terms thereof and the consummation of the transactions therein contemplated by this Agreement will not result in a (A) breach or violation of any of the terms and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesprovisions of, if applicable) and 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 breach of, or default or Repayment Event under, any agreement or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, instrument to which the such Selling Shareholder is a party or by which he may be such Selling Shareholder is bound, unless such conflict, breach, violation or default would not adversely affect such Selling Shareholder’s ability to which perform any of his or its obligations under this Agreement, the Custody Agreement and the Power of Attorney or any of the property transactions contemplated hereby and thereby; or assets (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 is subject (except thereof or for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the consummation of the transactions contemplated herein)hereby or thereby, nor will including the sale of the Firm Shares being sold by such action result in any violation of any applicable lawSelling Shareholder, statute, rule, regulation, judgment, order, writ except such as may be required under the Securities Act or decree, of any government, government instrumentality state securities laws or court, domestic or foreign, having jurisdiction over the blue sky laws.
(g) Such Selling Shareholder does not have any registration or other similar rights to have any respective properties, assets equity or operations;debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement.
(fh) The Such Selling Shareholder has not taken distributed and will not take, directly distribute any prospectus or indirectly, any action which is designed to or which has constituted stabilization or manipulation other offering material in connection with the offering and sale of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, 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 distributed by such Selling Shareholder; provided, however, that no Selling Shareholder has made nor will make any amendment or supplement thereto offer relating to the Firm Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act except a Permitted Free Writing Prospectus authorized for distribution by the Company and the Underwriters.
(i) Such Selling Shareholder has reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus and neither the Registration Statement, the Time of Sale Prospectus nor the Prospectus contains any untrue statement of a material fact or omits to state therein a any material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, in each case light of the circumstances under which they are made, not misleading regarding such Selling Shareholder, and, to the extent, but only to the extent, that knowledge of such untrue statement or omission was made in the Registration Statement, any Preliminary ProspectusSelling Shareholder, the Prospectus Company or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;otherwise.
(hj) The To the knowledge of such Selling Shareholder has no reason to believe that Shareholder, the representations and warranties of the Company set forth contained in Section 3 1 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 eventcorrect.
Appears in 1 contract
Sources: Purchase Agreement (Datalink Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance of such Selling Shareholder’s obligations under, this Agreement will not contravene any provisions of applicable law, any agreement or other instrument binding upon 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’s ability to consummate the transactions to be consummated by him under this Agreement.
(c) Such Selling Shareholder has, and on 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 and unencumbered 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 on each Applicable Closing Date, to be delivered sold by 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 on such Applicable Closing Date in connection with this Agreement) and full rightthe legal right and power, power and authority all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered sold by the such Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by pursuant to this Agreement, except delivery of such Shares, as has been already obtained directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be required 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 Act 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, 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 Rules and RegulationsCompany’s share registry in accordance with its articles of incorporation, state securities laws or the bylaws and rules applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the NASD in connection with UCC and (z) appropriate entries to the purchase and distribution by the Underwriters accounts of the Selling Shareholder Shares and several Underwriters on the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement records of DTC will have been duly executed and delivered by made pursuant to the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;UCC.
(e) The execution, delivery and performance of Such Selling Shareholder is not prompted to sell his Shares pursuant to this Agreement and by any material non-public information concerning the consummation of the transactions contemplated by this Agreement and Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) The Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option SharesStatement, when it became effective, did not contain and, as amended or supplemented, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets as of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed date of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains supplement, contain any untrue statement of a material fact or omits omit to state therein 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 each case connection with the offering of such Shares when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 5), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made 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 (iv) 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 2(g) (y) do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or any Preliminary 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 amendment amendments or supplement supplements thereto and (z) are limited in all respects to statements or omissions made in reliance upon and in conformity with written information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder pertaining, as such, expressly for use therein;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 has no reason to believe is not a person that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
is: (i) The Selling Shareholder will deliver to you prior to the subject of any Sanctions or at each Applicable Closing Date (ii) located or resident in a properly completed country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all the Crimea region of Ukraine). For the past 5 years, the Selling Shareholder Shares has not knowingly engaged in and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to now knowingly engaged in any order dealings or directive of, or party to transactions with 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 trustPerson, or in any country or territory, that at 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 such executor or trustee 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 time of the Shares hereunder, certificates representing dealing or transaction is or was the Shares shall be delivered by or on behalf subject 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 eventSanctions.
Appears in 1 contract
Sources: Underwriting Agreement (INSMED Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder has valid Shareholder, and unencumbered title to 2,300,000 shares of Class A Common Stock of assuming due execution by the Company, that are convertible into 2,300,000 Sharesthe Bank and the Underwriter, constitutes the valid and binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms (except in all cases to the extent as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium, readjustment of debt, fraudulent conveyance, or similar laws relating to or affecting creditors' rights generally or general principles of equity, whether considered in a proceeding in equity or at law, and except as the enforcement of rights to indemnity and contribution under this Agreement may be limited under applicable securities laws or the public policy underlying such laws).
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date and 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 Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for and the performance by the Selling Shareholder of his its obligations hereunderunder, this Agreement and the Power of Attorney appointing certain individual(s) as such Selling Shareholder's attorney(s)-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (as hereinafter defined) (the "Power of Attorney") will not (with or without the giving of notice or the passage of time or both) (i) conflict with any term or provision of the Selling Shareholder's articles of incorporation or bylaws or other organizational documents, as amended, (ii) 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 is a party or to which its properties or assets is subject or (iii) conflict with or violate any law, statute, rule or regulation or any order, judgment or decree of any court or governmental agency or body having jurisdiction over the Selling Shareholder or any of the Selling Shareholder's properties or assets.
(c) The Selling Shareholder will have, as of the Time of Delivery (as hereinafter defined), valid title to the Shares 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 to sell, transfer and deliver the Shares.
(d) 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.
(e) Upon delivery of the certificates for the Shares properly indorsed to the Underwriter and payment of the purchase price therefor pursuant to this Agreement, assuming the Underwriter has no notice of adverse claim and is acting in good faith, title to such Shares will be passed to the Underwriter, free and clear of all liens, security interests, pledges, charges, equities, and other encumbrances, other than as created by or through the Underwriter.
(f) The Selling Shareholder does not require any consent, approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body in connection with the offering, issuance or sale of the Shares to be sold by the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except for the registration of the Shares under the Act, of the Common Stock under the Exchange Act (as hereinafter defined) and such as has been already obtained or may be required by the NASD (as hereinafter defined) and under the Act or the Rules and Regulations, state securities or blue sky laws or the bylaws and rules of the NASD in connection with the purchase offer, sale and distribution of the Shares by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;Underwriter.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the 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, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(fg) The Selling Shareholder has not taken and will not take(i) taken, directly or indirectly, any action which is designed to cause or which 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;Shares or (ii) since the filing of the Registration Statement (A) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company, other than pursuant to this Agreement.
(gh) Neither The Selling Shareholder has read the Registration Statement, each Preliminary Prospectus (as hereinafter defined), and the Prospectus (as hereinafter defined) and, to the extent of any statement or omission from the Registration Statement, any Preliminary Prospectus, or the Prospectus which were made or any amendment or supplement thereto contains omitted in reliance upon and in conformity with information 2- furnished to the Company by the Selling Shareholder for use therein, to the best knowledge of the Selling Shareholder, the Registration Statement, at the effective date, each Preliminary Prospectus, at its date of issuance, and the Prospectus, from its date of issuance through the Time of Delivery, did not and will not contain any untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties light of the Company set forth circumstances in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 eventwhich they were made.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 certificate of 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) On the Option Closing Date (as defined below) the Selling Shareholder will have, have valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date and full rightthe legal right and power, power and authority all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder.
(d) The delivery of the Shares to be sold by the Selling Shareholder on such Applicable Closing Date hereunder; and pursuant to this Agreement will, upon the delivery of and payment for such Shares on each Applicable Closing Date hereunderas contemplated herein, the several Underwriters will acquire valid and unencumbered pass title to the such Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters free and clear of the Selling Shareholder Shares any security interests, claims, liens, equities and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;other encumbrances.
(e) The execution, delivery All information under the captions "Principal and performance Selling Stockholders" and "Risk Factors--Shares Eligible for Future Sale" furnished by or on behalf of this Agreement and the consummation of the transactions contemplated by this Agreement and such Selling Shareholder for use in the Registration Statement (including and Prospectus is, and on the issuance Closing Date and sale of such Selling Shareholder Shares on the Option Closing Date will be, true, correct, and complete, and does not, and on the Selling Shareholder Closing Date and on the Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and Closing Date will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of 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;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains contain any untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein such information not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or 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 negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the 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 such executor or trustee 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 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares on each Applicable Closing Date, to be delivered sold by the such Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShares.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required Upon payment for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;by 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, 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 registry in accordance with its certificate of 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) The Such Selling Shareholder has no reason to believe that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j) hereof). This Agreement 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Custody Agreement have been duly executed Prospectus and delivered by the Selling Shareholder and each such agreement is a legalhas no knowledge of any material fact, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and condition or information not disclosed in the Registration Statement (including Statement, the issuance and sale Time of such Selling Shareholder Shares and Sale Prospectus or the Selling Shareholder Option Shares, if applicable) and 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 breach ofProspectus that has had, or default or Repayment Event undermay have, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein)Company and its subsidiaries, nor will such action result in any violation of 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 taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action its subsidiaries which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither not set forth in the Registration Statement, any Preliminary Prospectus, 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 any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 case 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 (v) 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 are limited to statements or omissions made in reliance upon information relating to such Selling Shareholder furnished to the extent, but only to the extent, that Company in writing by such untrue statement or omission was made Selling Shareholder expressly for use in the Registration Statement, any Preliminary the Time of Sale Prospectus, the Prospectus or any amendment amendments or supplement thereto in reliance upon and in conformity with written information furnished supplements thereto.
(f) (i) None of such Selling Shareholder or any of its subsidiaries, or, to the Company 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 pertainingnor 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 suchamended (“ERISA”), for use therein;(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) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order taxes 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 duties 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 such executor or trustee 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 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 accordance with Section 15(a)), and has the terms power to designate, appoint and conditions 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 and in any of 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 eventSpecified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The This Agreement has been duly authorized, executed and delivered by the Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such 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 articles of 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 and unencumbered title to to, or a valid “security entitlement” within the meaning of Section 8‑501 of the New York Uniform Commercial Code in respect of, the Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; and upon or a security entitlement in respect of the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered sold by the Selling Shareholder pursuant to this Agreement, delivery of the Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of the Shares in the name of Cede or such other nominee and the crediting of the Shares on the books of DTC to securities account of the Underwriter (assuming that neither DTC nor 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 the Shares), (A) DTC shall be a “protected purchaser” of the Shares within the meaning of Section 8‑303 of the UCC, (B) under Section 8‑501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of the Shares and (C) no action based on any “adverse claim,” within the meaning of Section 8‑102 of the UCC, to the Shares may be asserted against the Underwriter with respect to such Applicable Closing Datesecurity entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) 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 registry in accordance with its certificate of 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 account of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations 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 under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(de) The Selling Shareholder has no reason to believe that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j) hereof). This Agreement 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Custody Agreement have been duly executed Prospectus and delivered by the Selling Shareholder and each such agreement is a legalhas no knowledge of any material fact, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and condition or information not disclosed in the Registration Statement (including Time of Sale Prospectus or the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach ofProspectus that has had, or default or Repayment Event undermay have, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may 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 would not have a material adverse effect on the transactions contemplated herein)Company and its subsidiaries, nor will such action result in any violation of 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 taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or any respective properties, assets or operations;its subsidiaries that is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(f) The Selling Shareholder has not taken (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 not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the price of any security of the Company to facilitate the sale or resale of the Shares;
Commission thereunder, (gii) Neither the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 case sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 5), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made 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 (vi) 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 2(f) do not apply to statements or omissions in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any amendment or supplement thereto in reliance based upon and in conformity with written information relating to the Underwriter furnished to the Company in writing by the Underwriter through you expressly for use therein.
(i) Neither the Selling Shareholder pertainingnor 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 offering, whether as suchunderwriter, for use therein;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) 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 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.
(h) The Selling Shareholder has no reason to believe represents and warrants that the representations and warranties of the Company set forth in Section 3 are it is not true and correct in all material respects;
(i) The Selling Shareholder will deliver an employee benefit plan subject to you prior Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to or at each Applicable Closing Date a properly completed and executed Section 4975 of the Internal Revenue Service Form W-8BEN Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or other applicable Form W-8;
(jaccount under Section 3(42) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody AgreementERISA, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of29 C.F.R. 2510.3-101, 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 such executor or trustee 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 eventotherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The This Agreement has been duly authorized, executed and delivered by the Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered performance by the Selling Shareholder on such Applicable Closing Date hereunder; and of his obligations under this Agreement will not contravene any provision of applicable law, or any agreement or other instrument binding upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor any judgment, order or authorizationdecree 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, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by under this Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution by the Underwriters sale of the Shares.
(c) The Selling Shareholder Shares and Shareholder, on the Selling Shareholder Option Closing Date, will have valid title to the Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legalthe legal right and power, valid and binding agreement of 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;.
(ed) The execution, delivery and performance of this Agreement and Upon payment for the consummation of the transactions contemplated Shares to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and 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 breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractthis Agreement, indenturedelivery of such Shares, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentas directed by the Underwriter, to which 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 Underwriter (assuming that neither DTC nor 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 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 Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder is a party 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 which he may be boundDTC, 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 would not have a material adverse effect in each case on the transactions contemplated herein)Company's share registry in accordance with its certificate of incorporation, nor will such action result in any violation of any bylaws and applicable law, statute, rule, regulation, judgment, order, writ or decree, (y) DTC will be registered as a "clearing corporation" within the meaning of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Section 8-102 of the Selling Shareholder or any respective properties, assets or operations;UCC and (z) appropriate entries to the account(s) of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(fe) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted might be reasonably expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not 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 or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(hf) The Selling Shareholder has no reason represents and warrants to, and agrees with, the Company and the Underwriter to believe that the same effect as the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;1 of this Agreement.
(ig) The In order to document the 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 will agrees to deliver to you prior to or at each Applicable on the Closing Date Date, a properly completed and executed Internal Revenue Service United States Treasury Department Form W-8BEN W-8 or W-9 (or other applicable Form W-8;
(j) Certificates form or statement specified by Treasury Department regulations in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"lieu thereof), duly executed and delivered by the 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 such executor or trustee 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 1 contract