Representations and Warranties of the Selling Stockholders. Each Selling Stockholder represents and warrants to each Underwriter that: (a) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date or the Option Closing Date, as applicable, will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever. (b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein. (c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder. (d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement. (e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever. (f) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions contemplated hereby and thereby, as applicable, will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder. (g) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does not, and will not on the 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. (h) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(g), such Selling Stockholder will immediately notify you of such change. (i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company. (j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby. (k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to each Underwriter Underwriter, solely in such Selling Stockholder's capacity as a Selling Stockholder, that:
(a) Such Selling Stockholder is (i) is, and on the Closing Date will be, the lawful owner of the Shares (other than that number of Shares, if any, listed opposite the name of such Selling Stockholder under the heading "Option Shares" in Schedule II hereto (with respect to each Selling Stockholder, such number of Shares is hereinafter referred to as the "Option Shares")) to be sold by such Selling Stockholder pursuant to this Agreement and has(ii) owns, and on the Closing Date or will own such Shares (other than the Option Closing Date, as applicable, will have, good and clear title to such Shares), free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than pursuant to the Custody Agreement (as defined below), if any, the Power of Attorney (as defined below), this Agreement and the restrictions on transfer set forth in the Management Voting Trust Agreement and the Stockholders' Agreement, with which such Selling Stockholder is, and on the Closing Date will be, in compliance, and other than any such restriction on transfer, lien, encumbrance, security interest, equity or claim created by an Underwriter or resulting from any actions taken by an Underwriter. If any Shares are listed opposite the name of a Selling Stockholder under the heading "Option Shares" in Schedule II hereto, such Selling Stockholder (i) is the holder of an Award Granted to such Selling Stockholder under the Young & Rubicam Holdings Inc. Management Stock Option Plan, as amended (the "PLAN") (as such terms are defined therein), with respect to the Option Shares and (ii) pursuant to the Plan and such Selling Stockholder's Stock Option Agreement (as defined in the Plan), on the Closing Date such Selling Stockholder (A) will be the lawful owner of the Option Shares to be sold by such Selling Stockholder pursuant to this Agreement and (B) will own such Option Shares, in each case subject to the terms of this Agreement, the Custody Agreement and the Power of Attorney, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than the restrictions on transfer set forth in the Management Voting Trust Agreement and the Stockholders' Agreement, with which such Selling Stockholder is, and on the Closing Date will be, in compliance, and other than any such restriction on transfer, lien, encumbrance, security interest, equity or claim created by an Underwriter or resulting from any actions taken by an Underwriter.
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, (i) to enter into this Agreement and, with respect to the Firm Selling StockholdersAgreement, the Power Letter of Attorney Transmittal and Custody Agreement Agreement, if any, signed by or on behalf of such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may beThe Bank of New York, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACTCUSTODY AGREEMENT"), relating to the deposit of the Firm Shares (other than the Option Shares) to be sold by such Firm Selling Stockholder and the Power of Attorney of such Selling Stockholder (the "POWER OF ATTORNEY") appointing certain individuals as such Selling Stockholder's attorneys-in-fact (with respect to the Y&R Selling Stockholders, the "Y&R ATTORNEYS," with respect to the H&F Selling Stockholders, the "H&F ATTORNEYS," with respect to BearTel, the "BEARTEL ATTORNEYS" and collectively the "ATTORNEYS") to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS")if any, and, with respect to each Selling Stockholder, and (ii) to sell, assign, transfer and deliver on the Closing Date the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed executed, and delivered by or on behalf of such Selling Stockholder.
(d) The Custody Agreement, if any, of such Selling Stockholder has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms.
(e) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement instrument of such Selling Stockholder, enforceable in accordance with its terms andterms, and pursuant to the power applicable Power of attorney conferred therebyAttorney, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement, on the Y&R Selling Stockholder's behalf the Custody Agreement and any other document that such Selling Stockholder they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(ef) Upon sale and delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good the Underwriters will own such Shares, free and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than any such restriction on transfer, lien, encumbrance, security interest, equity or claim created by an Underwriter or resulting from any actions taken by an Underwriter.
(fg) The executionAssuming that the representations and warranties of the Company in Section 6 hereof are true and accurate in all material respects, the execution and delivery and performance of this Agreement and the Custody Agreement, if any, and Power of Attorney and Custody Agreement of such Selling Stockholder, Stockholder by or on behalf of such Selling Stockholder, the compliance by each such Selling Stockholder with all the provisions hereof and thereof, as applicable, thereof and the consummation performance by such Selling Stockholder of the transactions contemplated hereby its obligations hereunder and thereby, as applicable, thereunder will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental agency or body or agency (except such as have been obtained or may be required under the Act or the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder or any spouse of such Selling Stockholder is a party or by which such Selling Stockholder or any spouse or property of such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any spouse or property of such Selling Stockholder.
(gh) The information in the Registration Statement Prospectus under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does not, (consisting of such Selling Stockholder's name and number of shares of Common Stock beneficially owned by such Selling Stockholder both before and after the offering contemplated hereby) will not on the date of the execution of this Agreement or on the 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.
(hi) At any time during the period described commencing on the first business day after the date of this Agreement and from time to time thereafter for such period as in Section 5(d)the reasonable opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, if there is any change in the information referred to in Section 7(g)7(h) above, such Selling Stockholder will immediately promptly notify you and the Company of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters pursuant to Section 9(e) shall be deemed to be a representation and warranty by such Selling Stockholder Stockholder, in its capacity as such, to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders, severally (solely with respect to such Selling Stockholder) and not jointly, represents and warrants to to, and agrees with, each Underwriter of the Underwriters and the Company that:
(a) Such Except (i) as will have been obtained on or prior to the Closing Date and on any Option Closing Date, as the case may be, for the registration under the Act of the Shares; (ii) as may be required under foreign or state securities (or Blue Sky) laws or by FINRA or by the New York Stock Exchange in connection with the purchase and distribution of the Shares by the Underwriters; and (iii) as would not impair in any material respect the ability of such Selling Stockholder is to consummate its obligations hereunder, all consents, approvals, authorizations and orders necessary for the lawful owner execution and delivery by such Selling Stockholder of this Agreement, and the Power of Attorney and the Custody Agreement referred to below and for the sale and delivery of the Shares to be sold by such Selling Stockholder pursuant hereunder, have been obtained or will be obtained on or prior to this Agreement and has, and on the Closing Date or the and on any Option Closing Date, as applicable, will have, good the case may be; and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, has full legal right, power and authority, and all authorization and approval required by law, authority to enter into this Agreement and, with respect to the Firm Selling StockholdersAgreement, the Power of Attorney and the Custody Agreement signed by such Firm Selling Stockholder referred to below and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇has or will have at the Closing Date and on any Option Closing Date, ▇▇ as the case may be, as Attorney- In-Fact full right, power and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.hereunder;
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(db) The Power sale of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of hereunder and payment for the Shares to be sold compliance by such Selling Stockholder pursuant to with this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and the Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions herein and contemplated hereby and thereby, as applicable, in the General Disclosure Package will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholderany statute, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease deed of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is bound subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of such Selling Stockholder or (iii) violate or conflict with result in any applicable law violation of any statute or any ruleorder, regulation, judgment, order rule or decree regulation of any court or any governmental agency or body or agency having jurisdiction over such Selling Stockholder or any property or assets of such Selling Stockholder., except in the case of (i) and (iii), as would not, individually or in the aggregate, reasonably be expected to materially impact such Selling Stockholder’s ability to perform its obligations under this Agreement, the Power of Attorney and the Custody Agreement; 14
(gc) Upon payment for the Shares to be sold by such Selling Stockholder 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 information 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),(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, such Selling Stockholder 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) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that might reasonably be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(e) To the extent that any statements or omissions made in the Registration Statement under Statement, the caption "Principal General Disclosure Package, the Prospectus or any amendment or supplement thereto are made in reliance upon and Selling Stockholders" which specifically relates to such in conformity with the Selling Stockholder does Information (as defined below), such Registration Statement and General Disclosure Package did not, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will not on not, when they become effective or are filed with the Closing DateCommission, 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 thereintherein not misleading. “Selling Stockholder Information,” severally with respect to each Selling Stockholder, consists solely of the information with respect to such Selling Stockholder included in the light beneficial ownership table under the caption “Selling Stockholders” in the General Disclosure Package and the Prospectus;
(f) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the circumstances under which they were made, not misleading.
(h) At any time during Tax Equity and Fiscal Responsibility Act of 1982 with respect to the period described in Section 5(d), if there is any change in the information referred to in Section 7(g)transactions herein contemplated, such Selling Stockholder will immediately notify deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W‑9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof);
(g) Certificates in negotiable form or book-entry securities entitlements representing all of the Shares to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the “Custody Agreement”), duly executed and delivered by such Selling Stockholder to Continental Stock Transfer & Trust Company, as custodian (the “Custodian”), and such Selling Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the “Power of Attorney”), appointing the person or persons indicated in Schedule I hereto, and each of them, as such Selling Stockholder’s attorneys‑in‑fact (the “Attorneys‑in‑Fact” or any of them the “Attorney-in-Fact”) with authority to execute and deliver this Agreement on behalf of such change.Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 3 hereof, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement; and
(ih) Such The Shares held in custody for such Selling Stockholder (i) has under the Custody Agreement are subject to the interests of the Underwriters hereunder; the arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the Attorneys‑in‑Fact by the Power of Attorney, are to that extent irrevocable; the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder or, in the case of an independent investment decision with respect to its decision to offer and sell 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, limited liability company or corporation, or by the occurrence of any other event; if any individual Selling Stockholder 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, limited liability company or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadto be sold by such Selling Stockholder hereunder, at certificates representing the time of the consummation of the distribution of Common Stock of the Company Shares to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed be sold by such Selling Stockholder hereunder shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and delivered conditions of this Agreement and the Custody Agreement; and actions taken by the Attorneys‑in‑Fact pursuant to the Underwriters or counsel for the Underwriters Powers of Attorney shall be deemed to be a representation and warranty by as valid as if such Selling Stockholder to death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Underwriters as to Custodian, the matters covered thereby.
(k) With respect to the Firm Selling StockholdersAttorneys‑in‑Fact, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section any of the preliminary prospectusthem, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder received notice of such death, incapacity, termination, dissolution or any person listed on Schedule III heretoother event.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each ---------------------------------------------------------- Selling Stockholder Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) Such such Selling Stockholder now is and at the time of delivery of such Shares (whether the time of purchase or the additional time of purchase, as the case may be) will be the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and hashas and, and on at the Closing Date or the Option Closing Date, as applicabletime of delivery thereof, will have, good have valid and clear marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of all restrictions on transferany claim, lienslien, encumbrancesencumbrance, security interestsinterest, equities and claims whatsoever.community property right, restriction on transfer or other defect in title;
(b) Such such Selling Stockholder has, has and on at the Closing Date time of delivery of such Shares (whether the time of purchase or the Option Closing Dateadditional time of purchase, as applicable, the case may be) will have, have full legal right, power and authoritycapacity, and all any authorization and or approval required by law, to enter into this Agreement and, with respect to law (other than those imposed by the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder Act and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"securities or blue sky laws of certain jurisdictions), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the such Shares to be sold by such Selling Stockholder in the manner provided herein and therein.in this Agreement;
(c) This Agreement has this Agreement, such Selling Stockholder's Custody Agreement, by and between Andrx Corporation, as custodian, and such Selling Stockholder (a "Custody Agreement" and, together with similar custody agreements in connection ----------------- with the transactions contemplated hereby, the "Custody Agreements"), such ------------------ Selling Stockholder's Power of Attorney and such Selling Stockholder's Lock-Up Letter have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and each is a legal, valid and binding agreement of such Selling Stockholder, Stockholder enforceable in accordance with its terms and, pursuant to terms;
(d) the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute execution and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold delivery by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of of, and payment for the Shares to be sold performance by such Selling Stockholder pursuant to of its obligations under, this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(f) The execution, delivery and performance of this Custody Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions contemplated hereby and thereby, as applicable, will not (i) require any consentcontravene or conflict with, approval, authorization or other order result in a breach of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, or require the consent of any other party to, the charter or by- laws, or other organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder 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 Stockholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder. No consent, approval, authorization or other order of, or registration or filing with, any property court or other governmental authority or agency, is required for the con- summation by such Selling Stockholder 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 and from the NASD;
(e) when the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchase, the additional time of purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus and any supplements or amendments thereto as such relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares;
(h) the sale of such Selling Stockholder's Shares pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in the Prospectus;
(i) such Selling Stockholder 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 the Prospectus under "Shares Eligible for Future Sale"; no consent, approval or waiver of such Selling Stockholder is bound required under any instrument or (iii) violate agreement in connection with the offering, sale or conflict with any applicable law or any rule, regulation, judgment, order or decree purchase by the Underwriters of any court of the Shares, except for consents and waivers already given by such Selling Stockholder;
(j) all information furnished by or any governmental body or agency having jurisdiction over on behalf of such Selling Stockholder or any property of such Selling Stockholder.
(g) The information in writing expressly for use in the Registration Statement under and Prospectus is, and at the caption "Principal time of purchase and Selling Stockholders" which specifically relates to such Selling Stockholder the additional time of purchase will be, true, correct, and complete in all material respects, and does not, and at the time of purchase and the additional time of purchase will not on the Closing Datenot, 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, such information not misleading.
(h) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(g), such Selling Stockholder will immediately notify you of such change.
(i) . Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell confirms as accurate the Shares number of shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed Stockholder's name in the table in Prospectus under the section of the preliminary prospectus, dated September 5, 2000, entitled caption "Principal and Selling Stockholders" that (iboth prior to and after giving effect to the sale of the Shares); and
(k) such Selling Stockholder has not executedtaken and will not take, on directly or prior indirectly, any action designed to the date hereof, an agreement or that might be reasonably expected to the effect set forth cause or result in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person stabilization or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as manipulation of the date hereof, and (iii) is not selling such shares price of the Common Stock to facilitate the Underwriters as contemplated hereby, to execute and deliver to you, on sale or prior to resale of the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III heretoShares.
Appears in 1 contract
Sources: Underwriting Agreement (Andrx Corp)
Representations and Warranties of the Selling Stockholders. Each In addition to the representations and warranties contained in section 2 hereof, each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to and agrees with the several Underwriters and the Company, and shall be deemed to represent and warrant to the several Underwriters and the Company on each Underwriter Closing Date, that:
(a) Such Selling Stockholder is the lawful owner has duly executed a power of the Shares to be sold by such Selling Stockholder pursuant to this Agreement attorney and has, and on the Closing Date or the Option Closing Date, as applicable, will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
custody agreement (b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement") naming ______________ and ________________, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS")or either of them, and, with respect to each as such Selling Stockholder, to sell, assign, transfer 's attorneys-in-fact ("Attorneys-in-Fact") for the purpose of entering into and deliver carrying out this Agreement and naming _____________________ as custodian ("Custodian") of the Optional Shares of such Selling Stockholder for the purpose of selling such Optional Shares to be sold the Underwriters on each Closing Date and receiving payment therefor.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement and for the sale and delivery of the Optional Shares to be sold by such Selling StockholderStockholder hereunder, by or as set forth on behalf Schedule II annexed hereto, have been obtained. Such Selling Stockholder has, and at the time of delivery thereof hereunder such Selling StockholderStockholder will have, good and valid title to the Optional Shares proposed to be sold by such Selling Stockholder hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities and claims, other than any created by the Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters, except for agreements to which such Selling Stockholder is a party to be terminated at the Closing. Such Selling Stockholder has full right, power and authority to enter into this Agreement and the Power of Attorney and Custody Agreement and to sell, assign, transfer and deliver such Optional Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community property rights, other than any created by the Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters, except for agreements to which such Selling Stockholder is a party to be terminated at the Closing. Upon delivery of and payment for such Optional Shares hereunder, the compliance by each Underwriters will acquire good and valid title thereto, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, and claims.
(c) Such Selling Stockholder has not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other material in connection with all the provisions hereof offering and thereofsale of the Shares. Such Selling Stockholder has not taken and will not take, as directly or indirectly, any action designed to or which would reasonably be expected to 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 Stock.
(d) The execution, delivery and performance by such Selling Stockholder of this Agreement and the Power of Attorney and Custody Agreement will not, if applicable, and result in the consummation violation of any provisions of the transactions contemplated hereby and therebycertificate of incorporation, as applicableby-laws, will not (i) require any consentpartnership agreement, approval, authorization limited liability operating agreement or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational governing documents of such Selling Stockholder, if such Selling Stockholder is not an individualor constitute a breach, or be in contravention, of any provision of any material agreement, franchise, license, indenture, loan agreement, mortgage, lease deed of trust or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is Stockholder's property may be bound or (iii) violate or conflict with any applicable law affected, or any rulestatute, regulationrule or regulation applicable to such Selling Stockholder, judgment, or violate any order or decree of any court court, regulatory body, administrative agency or any other governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder'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 such Selling Stockholder or the consummation by such Selling Stockholder 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. Such Selling Stockholder hereby represents and warrants that each Attorney-in-Fact has been duly appointed as attorney-in-fact by such Selling Stockholder for the purpose of entering into and carrying out this Agreement, and the Power of Attorney and Custody Agreement has been duly executed and delivered by or on behalf of such Selling Stockholder to the Representatives.
(e) This Agreement and the Power of Attorney and Custody Agreement are each valid and binding agreements of such Selling Stockholder enforceable in accordance with their respective terms.
(f) Such Selling Stockholder has deposited in custody, under the Power of Attorney and Custody Agreement, certificates in negotiable form for the Optional Shares to be sold hereunder by such Selling Stockholder as set forth opposite such Selling Stockholder's name on Schedule II annexed hereto for the purpose of further delivery pursuant to this Agreement. Such Selling Stockholder agrees that the Optional Shares of such Selling Stockholder on deposit with the Custodian are subject to the interests of the Company, the Underwriters and the other Selling Stockholders, that the arrangements made for such custody, and the appointment of the Attorneys-in-Fact pursuant to the Power of Attorney and Custody Agreement, are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder and under the Power of Attorney and Custody Agreement shall not be terminated, except as provided in this Agreement and the Power of Attorney and Custody Agreement, by any act of such Selling Stockholder, by operation of law, or, by the dissolution, winding up or other event affecting the legal life of such entity, or by the occurrence of any other event. If any event should occur before the delivery of the Optional Shares hereunder, the certificates for Optional Shares then on deposit with the Custodian shall, to the extent such Optional Shares are purchased by the Underwriters, be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Power of Attorney and Custody Agreement as if such event had not occurred, regardless of whether or not the Custodian shall have received notice thereof. Such Selling Stockholder represents that each Attorney-in-Fact has been authorized by such Selling Stockholder to execute and deliver this Agreement and the Custodian has been authorized to receive and acknowledge receipt of the proceeds of sale of the Optional Shares sold by such Selling Stockholder against delivery thereof and otherwise to act on behalf of such Selling Stockholder.
(g) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically Insofar as it relates to such Selling Stockholder does notStockholder, (i) 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 in light of the circumstances under which they were made not misleading; and will not (ii) on the effective date of the Registration Statement and on each Closing Date, contain (x) the Registration Statement and the Prospectus, did or will comply as to form in all material respects to the requirements of the Act, and (y) neither the Registration Statement nor the Prospectus 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, in the light of the circumstances under which they were made, therein not misleading.
(h) At any time during the period described The information contained in Section 5(d), if there is any change in the information referred to in Section 7(g), such Selling Stockholder will immediately notify you Stockholder's Selling Stockholders' Questionnaire completed in connection with the Company's public offering and delivered to the Representatives was, as of the date of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer questionnaire, and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadis, at the time as of the consummation date of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination this Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each true and correct. A certificate signed by or on behalf of such any Selling Stockholder as such and delivered to the Underwriters Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
. A certificate delivered by or on behalf of any Selling Stockholder to counsel for the Selling Stockholders for purposes of enabling such counsel to render the opinion referred in subsection (ke) With respect to section 10 hereof will also be furnished to the Firm Selling Stockholders, such Firm Selling Stockholder agrees Representatives and counsel for the Underwriters and shall be deemed to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal be additional representations and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock warranties to the Underwriters by such Selling Stockholder as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III heretomatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to and agrees with the several Underwriters and the Company, and shall be deemed to represent and warrant to the several Underwriters and the Company on each Underwriter Closing Date on which such Selling Stockholder sells Shares to the several Underwriters pursuant to this Agreement, that:
(a) Such Selling Stockholder is the lawful owner has duly executed and delivered a custody agreement and a power of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date or the Option Closing Date, as applicable, will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
attorney (b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the “Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and EdwaAgreement”) naming ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇ Mich▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ or either of them, as such Selling Stockholder’s attorneys-in-fact (“Attorneys-in-Fact”) for the purpose of entering into and carrying out this Agreement and naming Equiserve Trust Company N.A. as custodian (“Custodian”) of the Shares or the option grant agreement and notice of exercise of such option grant agreement (the “Option”) of such Selling Stockholder for the purpose of selling such Shares to the Underwriters, or, in the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Option, for the purpose of simultaneously exercising such Option to purchase the Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver selling the Shares to be sold the Underwriters, on each Closing Date and receiving payment therefor.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement and for the sale and delivery of the Shares to be sold by such Selling StockholderStockholder hereunder, as set forth on Schedule II annexed hereto, have been obtained, except for compliance with the Act, the Exchange Act and any state securities laws applicable to the public offering of the Shares by the several Underwriters. Such Selling Stockholder has good and valid title to the Shares or on behalf the Option, and at the time of delivery of the Shares hereunder such Selling StockholderStockholder will have, good and valid title to the Shares proposed to be sold by such Selling Stockholder hereunder, free and clear of all voting trust arrangements, liens, claims, encumbrances and security interests, other than any created by the Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters and except for agreements to which such Selling Stockholder is a party to be terminated at the Closing. Such Selling Stockholder has full right, power and authority to enter into this Agreement and the Power of Attorney and Custody Agreement and to sell, assign, transfer and deliver such Shares hereunder, free and clear of all voting trust arrangements, liens, claims, encumbrances, security interests and community property rights, other than any created by the Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters and except for agreements to which such Selling Stockholder is a party to be terminated at the Closing. Upon delivery of and payment for such Shares hereunder, the compliance by each Underwriters will acquire good and valid title thereto, free and clear of all voting trust arrangements, liens, claims, encumbrances and security interests assuming the Underwriters purchase such Shares without any notice of any adverse claim.
(c) Such Selling Stockholder has not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other material in connection with all the provisions hereof offering and thereofsale of the Shares. Such Selling Stockholder has not taken and will not take, as directly or indirectly, any action designed to or which would reasonably be expected to cause or result in, under the Act, 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 Stock.
(d) The execution, delivery and performance by such Selling Stockholder of this Agreement and the Power of Attorney and Custody Agreement will not, if applicable, and result in the consummation violation of any provisions of the transactions contemplated hereby and therebycertificate of incorporation, as applicableby-laws, will not (i) require any consentpartnership agreement, approval, authorization limited liability company agreement or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational governing documents of such Selling Stockholder, if such Selling Stockholder is not an individualor violate any provisions of, or result in the breach, modification or termination of, or constitute a default under any provision of any material agreement, franchise, license, indenture, loan agreement, mortgage, lease deed of trust or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or such Selling Stockholder’s property may be bound or affected, or violate any property of statute, rule or regulation applicable to such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court court, regulatory body, administrative agency or any other governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder’s property, except in each case where such violation, breach, modification, termination or default would not have a material adverse effect on the condition (financial or otherwise), business, properties, net worth or results of operations of such Selling Stockholder. 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 such Selling Stockholder or the consummation by such Selling Stockholder of the transactions contemplated by this Agreement, except for compliance with the Act, the Exchange Act, and any state securities laws. Such Selling Stockholder hereby represents and warrants that each Attorney-in-Fact has been duly appointed as attorney-in-fact by such Selling Stockholder for the purpose of entering into and carrying out this Agreement.
(e) This Agreement and the Power of Attorney and Custody Agreement are each valid and binding agreements of such Selling Stockholder enforceable in accordance with their respective terms, except as rights to indemnity or contribution hereunder and thereunder may be limited by applicable law or the public policy underlying such law and except as enforceability hereof and thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by equitable principles limiting the right to specific performance or other equitable relief.
(f) Such Selling Stockholder has deposited in custody, under the Power of Attorney and Custody Agreement, certificates in negotiable form or an Option grant agreement for the Shares to be sold hereunder by such Selling Stockholder as set forth opposite such Selling Stockholder’s name on Schedule II annexed hereto for the purpose of further delivery pursuant to this Agreement. Such Selling Stockholder agrees that the Shares or Option grant agreement of such Selling Stockholder on deposit with the Custodian are subject to the interests of the Company, the Underwriters and the other Selling Stockholders, that the arrangements made for such custody, and the appointment of the Attorneys-in-Fact pursuant to the Power of Attorney and Custody Agreement, are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder and under the Power of Attorney and Custody Agreement shall not be terminated, except as provided in this Agreement and the Power of Attorney and Custody Agreement, by any act of such Selling Stockholder, by operation of law, or, by the dissolution, winding up or other event affecting the legal life of such entity, or by the occurrence of any other event. If any event should occur before the delivery of the Shares hereunder, the certificates for Shares and the Shares issuable upon exercise of the Option then on deposit with the Custodian shall, to the extent such Shares are purchased by the Underwriters, be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Power of Attorney and Custody Agreement as if such event had not occurred, regardless of whether or not the Custodian shall have received notice thereof. Such Selling Stockholder represents that each Attorney-in-Fact has been authorized by such Selling Stockholder to execute and deliver this Agreement and each of the Selling Stockholders represents that the Custodian has been authorized to exercise the Option where applicable and to receive and acknowledge receipt of the proceeds of sale of the Shares sold by such Selling Stockholder against delivery thereof and otherwise to act on behalf of such Selling Stockholder.
(g) The information To the extent, but only to the extent, that any statements or omissions made in the Registration Statement under Statement, any Preliminary Prospectus, the caption "Principal Prospectus, or any amendment or supplement thereto are made in reliance upon and Selling Stockholders" which specifically relates in conformity with written information furnished to the Company by such Selling Stockholder does notexpressly for use therein, (i) 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, in light of the circumstances under which they were made, not misleading; and will not (ii) on the effective date of the Registration Statement and on each Closing Date, contain (x) the Registration Statement and the Prospectus, did or will comply as to form in all material respects to the requirements of the Act, and (y) neither the Registration Statement nor the Prospectus 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, in the light of the circumstances under which they were made, or necessary to make the statements therein not misleading.
(h) At any time during the period described The information contained in Section 5(d), if there is any change in the information referred to in Section 7(g), such Selling Stockholder will immediately notify you Stockholder’s Questionnaire completed in connection with the Company’s public offering and delivered to the Representatives was, as of the date of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer questionnaire, and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadis, at the time as of the consummation date of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination this Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each true and correct. A certificate signed by or on behalf of such any Selling Stockholder as such and delivered to the Underwriters Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
. A certificate delivered by or on behalf of any Selling Stockholder to counsel for the Selling Stockholders for purposes of enabling such counsel to render the opinion referred in subsection (ke) With respect to section 10 hereof will also be furnished to the Firm Selling Stockholders, such Firm Selling Stockholder agrees Representatives and counsel for the Underwriters and shall be deemed to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal be additional representations and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock warranties to the Underwriters by such Selling Stockholder as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III heretomatters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Rc2 Corp)
Representations and Warranties of the Selling Stockholders. Each ---------------------------------------------------------- Selling Stockholder severally represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date or the and each Option Closing Date, as applicableif any, will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities interests and claims whatsoeverwhatsoever (except the interests of the Underwriters hereunder).
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the such Shares to be sold by such Selling Stockholder 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, equities interests and claims whatsoever.
(c) Such Selling Stockholder has, and on the Closing Date and each Option Closing Date, if any, will have, full legal right, power and authority to enter into this Agreement, the Power of Attorney (as defined below) and a Custody Agreement (the "Custody Agreement") between the Selling Stockholders and the Company, as Custodian (the "Custodian") and to sell, assign, transfer and deliver such Shares in the manner provided herein and therein, and this Agreement, the Power of Attorney and the Custody Agreement have been duly authorized, executed and delivered by such Selling Stockholder and each of this Agreement, the Power of Attorney and the Custody Agreement is a valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by applicable law.
(d) The power of attorney (the "Power of Attorney") signed by such Selling Stockholder appointing ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ as its attorneys- in-fact (each an "Attorney-in-Fact") to the extent set forth therein with regard to the transactions contemplated hereby and by the Registration Statement and the Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder enforceable in accordance with its terms, and, pursuant to such power of attorney, such Selling Stockholder has authorized ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ to execute and deliver on its behalf this Agreement, the Custody Agreement and any other document necessary or desirable in connection with transactions contemplated hereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the 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 Stockholder 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 and Agreement, the Power of Attorney and the Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each such Selling Stockholder with all the provisions hereof and thereof, as applicable, thereof and the consummation of the transactions contemplated hereby and thereby, as applicable, thereby will not conflict with, constitute a default under or violate (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states)terms, conditions or provisions of the organizational documents of the Selling Stockholder, (ii) conflict with or constitute a breach of any of the terms terms, conditions or provisions ofof any document, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease indenture or other agreement or instrument to which such the Selling Stockholder is a party or by which such the Selling Stockholder or any property of such Selling Stockholder is bound or its respective properties are bound, (iii) violate or conflict with any applicable law or regulation or (iv) any rulejudgment, regulationwrit, judgmentinjunction, decree, order or decree ruling of any court or any governmental body or agency having jurisdiction over such authority binding on the Selling Stockholder or its respective properties. No consent, approval, waiver, license or authorization or other action by or filing with any property governmental authority is required in connection with the execution, delivery and performance by the Selling Stockholder this Agreement, the Power of such Attorney and the Custody Agreement or the consummation by the Selling StockholderStockholder of the transactions contemplated hereby and thereby, except under the Act and the state securities or blue sky laws.
(g) The information in Such parts of the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates relate to such Selling Stockholder does do not, and will not on the Closing Date (and each Option Closing Date, if applicable), 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.
(h) At any time during the period described in Section 5(d)paragraph 5(f) hereof, if there is any change in the information referred to in Section 7(g)paragraph 8(g) above, such the Selling Stockholder will immediately notify you of such change.
(i) Such Certificates in negotiable form for all Securities to be sold by such Selling Stockholder (i) has made an independent investment decision under this Agreement have been placed in custody with respect to its decision to offer and sell the Shares Custodian for the purpose of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination effecting delivery under this Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty Except as noted by such Selling Stockholder in writing to DLJ, the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each is not affiliated with or a person or entity listed in the table in the section associated with a member of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III heretoNASD.
Appears in 1 contract
Sources: Underwriting Agreement (Brown & Sharpe Manufacturing Co /De/)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders, severally and not jointly, represents and warrants to each Underwriter thatas follows:
(a) Such Each Selling Stockholder is the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and hasthereby, and on the Closing Date or the Option Closing Date, (as applicable, defined herein) each Selling Stockholder will have, have good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities interests and claims whatsoever.
(b) Such Selling Stockholder hasclaims, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, authority to effect the sale and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf delivery of such Selling Stockholder.
(d) The Power of Attorney Shares; and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to upon the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the such Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such these Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities interests and claims whatsoeverclaims.
(fb) The executionEach Selling Stockholder has, delivery and performance on the Closing Date will have, full legal right, power and authority to enter into this Agreement, and to sell, assign, transfer and deliver the Shares in the manner provided herein. This Agreement has been duly authorized, executed and delivered by one or more of the Attorneys-in-Fact on behalf of each Selling Stockholder, and this Agreement is a valid and binding agreement of each Selling Stockholder enforceable against each Selling Stockholder in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by applicable law.
(c) Each Selling Stockholder has duly executed and delivered the Custody Agreement and Power of Attorney in the forms previously delivered to the Underwriters, appointing ______________ and ______________, and each of them as each Selling Stockholder's attorney-in-fact (the "Attorney-in-Fact"), and the respective Custody Agreement and Power of Attorney are valid and binding agreements of such Selling Stockholder. The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of the Selling Stockholder, and to deliver the Shares to be sold by or such Selling Stockholder hereunder, to accept payment therefor and otherwise to act on behalf of such Selling StockholderStockholder in connection with this Agreement. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Stockholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement for the purpose of delivery pursuant to this Agreement. Such Selling Stockholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement. If such Selling Stockholder should die or become incapacitated or if any other event should occur, before the delivery of the Shares of such Selling Stockholder hereunder, the compliance certificates for such Shares deposited with the Custodian shall be delivered by each the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(d) All authorizations and consents necessary for the execution and delivery of this Agreement, the Custody Agreement, and Power of Attorney on behalf of such Selling Stockholder with all and for the provisions hereof sale and thereofdelivery of the Shares to be sold by such Selling Stockholder hereunder had been given or obtained, except as applicablemay be required by the Securities Act or state securities laws; and the performance of this Agreement, the Custody Agreement, and Power of Attorney and the consummation of the transactions contemplated hereby and thereby, as applicable, thereby by each Selling Stockholder will not (i) require any consent, approval, authorization result in a breach or other order violation of, or qualification conflict with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or constitute a default by a Selling Stockholder under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, mortgagelease, lease franchise, license or other agreement or instrument to which such the Selling Stockholder or any of his or its properties is a party bound, any statute, or by which any judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Stockholder or any property of his properties.
(e) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Securities Act, such Selling Stockholder is bound has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
(iiif) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property To the knowledge of such Selling Stockholder.
(g) The information , the representations and warranties of the Company contained in Section 1 of this Agreement are true and correct; such Selling Stockholder has reviewed and is familiar with the Registration Statement under as originally filed with the caption "Principal Commission and Selling Stockholders" which specifically relates to such Selling Stockholder the Preliminary Prospectus contained therein; the Preliminary Prospectus does not, and will not on the Closing Date, contain include any untrue statement of a material fact or omit to state any 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; and such Selling Stockholder is not prompted to sell the Shares to be sold by such Selling Stockholder by any information concerning the Company that is not set forth in the Preliminary Prospectus or the Effective Prospectus.
(g) At the time the Registration Statement becomes effective (i) such parts of the Registration Statement and any amendments and supplements thereto as specifically refer to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) such parts of the Preliminary Prospectus and Effective Prospectus as specifically refer to such Selling Stockholder will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) At No approval, consent, order, authorization, designation, declaration or filing by or with any time during regulatory body, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement by such Selling Stockholder, and the consummation by such Selling Stockholder of the transactions herein contemplated (other than as required by the Securities Act or by state securities laws).
(i) For a period described in Section 5(d), if there is any change in of 120 days from the information referred to in Section 7(g)effective date of the Registration Statement, such Selling Stockholder will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect not, directly or indirectly, sell, offer to its decision to offer and sell sell, grant any option for the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadsale of, at the time of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any Stock, other equity security than to the Underwriters pursuant to this Agreement, without the prior written consent of Equitable, on behalf of the CompanyUnderwriters.
(j) Each certificate signed by or on behalf In order to document the Underwriters' compliance with the reporting and withholding provisions of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters Internal Revenue Code of 1986, as to the matters covered thereby.
(k) With amended, with respect to the Firm Selling Stockholderstransactions herein contemplated, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or deliver to you prior to or at the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity First Closing Date (a "Lock-Up Agreement"as hereinafter defined), a properly completed and executed United States Treasury Department Form W-9 (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder other applicable form or any person listed on Schedule III heretostatement specified by Treasury Department regulations in lieu thereof).
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. (a) Each Selling Stockholder of The ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Living Trust dated April 16, 1987, as amended, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (collectively, the "PERENCHIO SELLING STOCKHOLDERS") represents and warrants to each Underwriter that:
(ai) Such Selling Stockholder is the lawful owner of the Firm Shares and Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date or the Option Closing Date, as applicable, will have, good and clear title to such Firm Shares and Additional Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, except for restrictions on transfer, encumbrances or claims pursuant to that certain Stock Transfer Agreement dated December 5, 1996 between A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, that certain Irrevocable Proxy dated December 5, 1996 from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Perenchio to A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and the Custody Agreement and Power of Attorney (each as defined below).
(bii) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, all necessary trust power and authorityauthority or legal capacity, and all authorization and approval required by lawas the case may be, to enter into this Agreement and, with respect to the Firm Selling StockholdersAgreement, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may beThe Bank of New York, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT")Custodian, relating to the deposit of the Firm Shares and Additional Shares to be sold by such Firm Selling Stockholder (the "CUSTODY AGREEMENT") and the Power of Attorney of such Selling Stockholder appointing certain individuals as such Selling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (and the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTSATTORNEY"), and, with respect to each Selling Stockholder, ) and to sell, assign, transfer and deliver the Firm Shares and Additional Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(ciii) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(div) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms andterms, pursuant except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to the power or affecting creditors' rights generally, and by general principles of attorney conferred therebyequity, regardless of whether considered in a proceeding in equity or at law.
(v) The Power of Attorney of such Selling Stockholder has been duly executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally, and by general principles of equity, regardless of whether considered in a proceeding in equity or at law. Pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Firm Shares and Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(evi) Upon delivery of and payment for the Firm Shares and Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Firm Shares and Additional Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(fvii) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney and Custody Agreement of such Selling Stockholder, Stockholder by or on behalf of such Selling Stockholder, the compliance by each such Selling Stockholder with all the provisions hereof and thereof, as applicable, thereof and the consummation of the transactions contemplated hereby and thereby, as applicable, thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individualapplicable, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound bound, except for such conflicts, breaches or defaults as would not have a material adverse effect on the Shares or the transactions contemplated hereby or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(gviii) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does not, and will not on the 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.
(hix) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(g), Each certificate signed by or on behalf of such Selling Stockholder will immediately notify you and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby. In addition to the foregoing, A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ also represents and warrants to each Underwriter that, to the best of such changehis knowledge, the Registration Statement and Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(b) Each of Univision Special Partnership II, L.P. and Univision Special Partnership III, L.P. (collectively, the "▇▇▇▇▇▇ SELLING STOCKHOLDERS") represents and warrants to each Underwriter that:
(i) Such Selling Stockholder (i) has made an independent investment decision with respect is the owner of the Warrants to its decision be sold by such Selling Stockholder pursuant to offer this Agreement and sell has, and on the Shares Closing Date will have, good and clear title to such Warrants, free of Common Stock set forth opposite its name all restrictions on Schedule II hereto transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(ii) hadSuch Selling Stockholder has, and on the Closing Date will have, all necessary partnership power and authority to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and The Bank of New York, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder and the Power of Attorney of such Selling Stockholder appointing certain individuals as such Selling Stockholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement and the Custody Agreement and to sell, assign, transfer and deliver the Warrants to be sold by such Selling Stockholder in the manner provided herein and therein.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(iv) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally, and by general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(v) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally, and by general principles of equity, regardless of whether considered in a proceeding in equity or at law. Pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the time Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Warrants to be sold by such Selling Stockholder pursuant to this Agreement.
(vi) Upon delivery of and payment for the Warrants to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Warrants will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever. Upon exercise of the Firm Warrants and any Additional Warrants, the Firm Warrant Shares and the Additional Warrant Shares will be issued free and clear of all liens, encumbrances, security interests, equities or claims resulting from any action taken by such Selling Stockholder.
(vii) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation of the distribution of Common Stock transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreementvarious states), no plan (ii) conflict with or intention to sell or otherwise dispose constitute a breach of any shares of Common Stock the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, or any indenture, loan agreement, mortgage, lease or other equity security agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound, except for such conflicts, breaches or defaults as would not have a material adverse effect on the CompanyWarrants, the Shares or the transactions contemplated hereby or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(jviii) Such Selling Stockholder has complied with all provisions of the Warrants in order to sell, assign, transfer and deliver the Warrants sold by such Selling Stockholder hereunder.
(ix) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does not, and will not on the 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 light of the circumstances under which they were made, not misleading.
(x) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Sources: Underwriting Agreement (Univision Communications Inc)
Representations and Warranties of the Selling Stockholders. (a) Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(ai) Such such Selling Stockholder now is the lawful owner of the number of Shares, or stock options exercisable for the number of Shares, to be sold by such Selling Stockholder pursuant to this Agreement and, at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will be, the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement Agreement; such Selling Stockholder now has valid and hasmarketable title to such Shares or stock options exercisable for such Shares and, and on at the Closing Date or the Option Closing Date, as applicabletime of delivery thereof, will have, good have valid and clear marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of all restrictions on transferany claim, lienslien, encumbrancesencumbrance, security interestsinterest, equities and claims whatsoever.community property right, restriction on transfer or other defect in title;
(bii) Such such Selling Stockholder has, has and on at the Closing Date time of delivery of such Shares (whether the time of purchase or the Option Closing Dateadditional time of purchase, as applicable, the case may be) will have, full legal right, power and authoritycapacity, and all authorization and any approval required by law, to enter into this Agreement and, with respect to law (other than those imposed by the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder Act and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"securities or blue sky laws of certain jurisdictions), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the such Shares to be sold by such Selling Stockholder in the manner provided herein and therein.in this Agreement;
(ciii) This this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and the Custody Agreement of between [_________], as custodian, and such Selling Stockholder has (each such agreement, a "Custody Agreement" and, collectively, the "Custody Agreements") have been duly authorized, executed and delivered by such Selling Stockholder and each is a legal, valid and binding agreement of such Selling Stockholder, Stockholder enforceable in accordance with its terms andterms;
(iv) when the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchase, pursuant additional time of purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to the power of attorney conferred thereby, such Selling Stockholder haswill 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;
(v) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, among other thingson behalf of such Selling Stockholder, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(vi) the sale of such Selling Stockholder's Shares pursuant to this Agreement.Agreement is not prompted by any information concerning the Company which is not set forth in the Prospectus;
(evii) Upon delivery such Selling Stockholder has not taken any action designed, or which has constituted or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(viii) there are no affiliations or associations between any member of the NASD and payment for such Selling Stockholder, except as set forth in the Registration Statement and the Prospectus;
(ix) other than as permitted by the Act, such Selling Stockholder has not distributed, nor will such Selling Stockholder distribute, any prospectus or other offering material in connection with the offering and sale of the Shares;
(x) at the time of purchase, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of several Underwriters hereunder will have been fully paid or provided for by such Selling Stockholder and all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.laws imposing such taxes will have been fully complied with; and
(fxi) The the execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder, by or on behalf of such Selling StockholderAgreement, the compliance by each Selling Stockholder with all sale of the provisions hereof and thereof, as applicable, Shares and the consummation of the transactions contemplated hereby and thereby, as applicable, will not (i) require any consent, approval, authorization or other order of, or qualification conflict with, result in any court breach or governmental body or agency (except such as may be required under the securities or Blue Sky laws violation of the various states), (ii) conflict with or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or ) (A) any indenture, loan agreement, mortgage, lease contract or other agreement or instrument to which such the Selling Stockholder is a party or by which such the Selling Stockholder or any property of the Selling Stockholder's properties may be bound or affected, or (B) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Selling Stockholder. In addition, any certificate signed by such Selling Stockholder is bound and delivered to the Underwriters or (iii) violate or conflict counsel for the Underwriters in connection with any applicable law or any rule, regulation, judgment, order or decree the offering of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of the Shares shall be deemed to be a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
(gb) The information Each Principal Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that each Preliminary Prospectus, at the time of filing thereof, and the last Preliminary Prospectus distributed in connection with the Registration Statement under offering of the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does Shares did not, as of its date, and will does not on the Closing Date, contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(h) At any time during ; and the period described in Section 5(d)Registration Statement did not when it became effective, if there is any change in the information referred to in Section 7(g), such Selling Stockholder does not and will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadnot, at the time of purchase and any additional time of purchase, 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 consummation statements therein not misleading and the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the distribution of Common Stock of circumstances under which they were made, not misleading; provided, however, that such Selling Stockholder makes no warranty or representation with respect to any statement contained in the Company to stockholders of Pittway Corporation pursuant to Preliminary Prospectus, the Combination Agreement, no plan Registration Statement or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Selling Stockholder and delivered Underwriter through you to the Underwriters Company expressly for use in the Preliminary Prospectus, the Registration Statement or counsel for the Underwriters shall be deemed Prospectus.
(c) Each Other Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that, to such Other Selling Stockholder's knowledge, each Preliminary Prospectus, at the time of filing thereof, and the last Preliminary Prospectus distributed in connection with the offering of the Shares did not, as of its date, and 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, in light of the circumstances under which they were made, not misleading; and to such Other Selling Stockholder's knowledge, the Registration Statement did not when it became effective, does not and will not, at the time of purchase and any additional time of purchase, contain an untrue statement of a representation material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and warranty by the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person makes no warranty or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) representation with respect to any Additional Selling Stockholder statement contained in the Preliminary Prospectus, the Registration Statement or any person listed the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on Schedule III heretobehalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus, the Registration Statement or the Prospectus.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally represents and warrants (except with respect to 7(c) and 7(d) below, which shall not be made by the ESOP) to each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date or the Option Closing Date, as applicable, will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities interests and claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling StockholdersAgreement, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be_______________________, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT")Custodian, relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder (the "Custody Agreement") and the Power of Attorney of such Selling Stockholder appointing certain individuals as such Selling Stockholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement and the Custody Agreement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(cd) this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(df) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms andterms, except as rights to indemnity and contribution hereunder may be limited by applicable law.
(g) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the power of attorney conferred therebydistribution contemplated by this Agreement, such and other than as permitted by the Act, the Selling Stockholder has, among has not distributed and will not distribute any prospectus or other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable offering material in connection with the transactions contemplated hereby offering and thereby and to deliver sale of the Shares to be sold by such Selling Stockholder pursuant to this AgreementShares.
(eh) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(fi) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney and Custody Agreement of such Selling Stockholder, Stockholder by or on behalf of such Selling Stockholder, the compliance by each such Selling Stockholder with all the provisions hereof and thereof, as applicable, thereof and the consummation of the transactions contemplated hereby and thereby, as applicable, thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(gj) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does not, and will not on the 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.
(hk) At any time during the period described in Section paragraph 5(d)) hereof, if there is any change in the information referred to in Section 7(g)paragraph 7(j) above, such Selling Stockholder Stockholders will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each ---------------------------------------------------------- Selling Stockholder represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is has (except with respect to certain shares of Common Stock for which the lawful owner Selling Stockholders hold options as designated on Schedule 2 (collectively, the "Selling Stockholder Option -------------------------- Shares")) and immediately prior to the Closing Date the Selling Stockholder will have good and valid title to the shares of Common Stock (including the Shares Selling Stockholder Option Shares) to be sold by such Selling Stockholder pursuant to this Agreement and hasit hereunder, and on the Closing Date or the Option Closing Date, as applicable, will have, good free and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interestsequities 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 and claims whatsoeveror claims, will pass to the several Underwriters.
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement andhas placed (or, with respect to the Firm Selling StockholdersStockholder Option Shares, will have placed by the Closing Date) in custody with the Custodian under the Custody Agreement, for delivery under this Agreement, certificates in negotiable form (with signature guaranteed) representing the shares of Common Stock to be sold by it.
(c) Such Selling Stockholder has duly and irrevocably executed and delivered the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇appointing ▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ as Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), andin- fact, with respect full power of substitution, and with full authority to each Selling Stockholder, to sell, assign, transfer execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or provisions hereof on behalf of such Selling Stockholder.
(d) The Such Selling Stockholder has full legal right, power and authority to enter into this Agreement, the Power of Attorney and the Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to Agreement; the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and Agreement, the Power of Attorney and the Custody Agreement of Agreement, by such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, as applicable, thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease deed of trust, loan agreement or other material agreement or instrument in- strument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is bound or (iii) violate or conflict with subject, nor will such actions result in any applicable law violation of any statute or any ruleorder, regulation, judgment, order rule or decree regulation of any court or any governmental agency or body or agency having jurisdiction over such Selling Stockholder or any the property or assets of such Selling Stockholder; and, except for such consents, approval, authorizations, registrations or qualifications as may be required under the Act and applicable state or foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters, no consent, approval, authorization or 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, the Power of Attorney or the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby or thereby.
(ge) The information To the extent that any statements made in the Registration Statement or the Prospectus or any amendment or supplement pertain to and are made in reliance upon and in conformity with written information provided by such Selling Stockholder to the Company concerning such Selling Stockholder specifically for inclusion under the caption "Principal and Selling Stockholders" which specifically relates in the Prospectus, the Registration Statement and the Prospectus and any further amendments or supplements to such Selling Stockholder does the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and will not on any amendment thereto) and as of the Closing Date, applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were mademade (in the case of the Prospectus), not misleading.
(h) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(g), such Selling Stockholder will immediately notify you of such change.
(if) Such Selling Stockholder (i) has made an independent investment decision with respect not taken and will not take, directly or indirectly, any action which is designed to its decision or which has constituted or which might reasonably be expected to offer and sell cause or result in the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time stabilization of the consummation price of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the CompanyStock.
(j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally represents and warrants (except with respect to 7(b), 7(c) and 7(e) below, which shall not be made by the ESOP) to each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date or the Option Closing Date, as applicable, will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities interests and claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling StockholdersAgreement, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be_______________________, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT")Custodian, relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder (the "Custody Agreement") and the Power of Attorney of such Selling Stockholder appointing certain individuals as such Selling Stockholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement and the Custody Agreement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(d) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(de) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms andterms, except as rights to indemnity and contribution hereunder may be limited by applicable law.
(f) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the power of attorney conferred therebydistribution contemplated by this Agreement, such and other than as permitted by the Act, the Selling Stockholder has, among has not distributed and will not distribute any prospectus or other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable offering material in connection with the transactions contemplated hereby offering and thereby and to deliver sale of the Shares to be sold by such Selling Stockholder pursuant to this AgreementShares.
(eg) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(fh) The execution, delivery and performance of this Agreement and, to the extent applicable, the Custody Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder, Stockholder by or on behalf of such Selling Stockholder, the compliance by each such Selling Stockholder with all the provisions hereof and thereof, as applicable, thereof and the consummation of the transactions contemplated hereby and thereby, as applicable, thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the Act or securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(gi) The information in the Registration Statement under the caption captions "Principal Stockholders" and "Selling Stockholders" which specifically relates to such Selling Stockholder does not, and will not on the 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.
(hj) At any time during the period described in Section paragraph 5(d)) hereof, if there is any change in the information referred to in Section 7(g)paragraph 7(j) above, such Selling Stockholder Stockholders will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders, severally (solely with respect to such Selling Stockholder) and not jointly, represents and warrants to to, and agrees with, each Underwriter of the Underwriters and the Company that:
(a) Such Except (i) as will have been obtained on or prior to the Closing Date and on any Option Closing Date, as the case may be, for the registration under the Act of the Shares; (ii) as may be required under foreign or state securities (or Blue Sky) laws or by FINRA or by the New York Stock Exchange in connection with the purchase and distribution of the Shares by the Underwriters; and (iii) as would not impair in any material respect the ability of such Selling Stockholder is to consummate its obligations hereunder, all consents, approvals, authorizations and orders necessary for the lawful owner execution and delivery by such Selling Stockholder of this Agreement, and the Power of Attorney and the Custody Agreement referred to below and for the sale and delivery of the Shares to be sold by such Selling Stockholder pursuant hereunder, have been obtained or will be obtained on or prior to this Agreement and has, and on the Closing Date or the and on any Option Closing Date, as applicable, will have, good the case may be; and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, has full legal right, power and authority, and all authorization and approval required by law, authority to enter into this Agreement and, with respect to the Firm Selling StockholdersAgreement, the Power of Attorney and the Custody Agreement signed by such Firm Selling Stockholder referred to below and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇has or will have at the Closing Date and on any Option Closing Date, ▇▇ as the case may be, as Attorney- In-Fact full right, power and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.hereunder;
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(db) The Power sale of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of hereunder and payment for the Shares to be sold compliance by such Selling Stockholder pursuant to with this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and the Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions herein and contemplated hereby and thereby, as applicable, in the General Disclosure Package will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholderany statute, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease deed of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is bound subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of such Selling Stockholder or (iii) violate or conflict with result in any applicable law violation of any statute or any ruleorder, regulation, judgment, order rule or decree regulation of any court or any governmental agency or body or agency having jurisdiction over such Selling Stockholder or any property or assets of such Selling Stockholder., except in the case of (i) and (iii), as would not, individually or in the aggregate, reasonably be expected to materially impact such Selling Stockholder’s ability to perform its obligations under this Agreement, the Power of Attorney and the Custody Agreement;
(gc) Upon payment for the Shares to be sold by such Selling Stockholder 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 information 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),(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, such Selling Stockholder 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) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that might reasonably be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(e) To the extent that any statements or omissions made in the Registration Statement under Statement, the caption "Principal General Disclosure Package, the Prospectus or any amendment or supplement thereto are made in reliance upon and Selling Stockholders" which specifically relates to such in conformity with the Selling Stockholder does Information (as defined below), such Registration Statement and General Disclosure Package did not, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will not on not, when they become effective or are filed with the Closing DateCommission, 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 thereintherein not misleading. “Selling Stockholder Information,” severally with respect to each Selling Stockholder, consists solely of the information with respect to such Selling Stockholder included in the light beneficial ownership table under the caption “Selling Stockholders” in the General Disclosure Package and the Prospectus;
(f) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the circumstances under which they were made, not misleading.
(h) At any time during Tax Equity and Fiscal Responsibility Act of 1982 with respect to the period described in Section 5(d), if there is any change in the information referred to in Section 7(g)transactions herein contemplated, such Selling Stockholder will immediately notify deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof);
(g) Certificates in negotiable form or book-entry securities entitlements representing all of the Shares to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the “Custody Agreement”), duly executed and delivered by such Selling Stockholder to Continental Stock Transfer & Trust Company, as custodian (the “Custodian”), and such Selling Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the “Power of Attorney”), appointing the person or persons indicated in Schedule I hereto, and each of them, as such Selling Stockholder’s attorneys-in-fact (the “Attorneys-in-Fact” or any of them the “Attorney-in-Fact”) with authority to execute and deliver this Agreement on behalf of such change.Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 3 hereof, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement; and
(ih) Such The Shares held in custody for such Selling Stockholder (i) has under the Custody Agreement are subject to the interests of the Underwriters hereunder; the arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable; the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder or, in the case of an independent investment decision with respect to its decision to offer and sell 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, limited liability company or corporation, or by the occurrence of any other event; if any individual Selling Stockholder 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, limited liability company or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadto be sold by such Selling Stockholder hereunder, at certificates representing the time of the consummation of the distribution of Common Stock of the Company Shares to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed be sold by such Selling Stockholder hereunder shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and delivered conditions of this Agreement and the Custody Agreement; and actions taken by the Attorneys-in-Fact pursuant to the Underwriters or counsel for the Underwriters Powers of Attorney shall be deemed to be a representation and warranty by as valid as if such Selling Stockholder to death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Underwriters as to Custodian, the matters covered thereby.
(k) With respect to the Firm Selling StockholdersAttorneys-in-Fact, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section any of the preliminary prospectusthem, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder received notice of such death, incapacity, termination, dissolution or any person listed on Schedule III heretoother event.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder represents and warrants to each Underwriter thatto, and agrees with, the Underwriters as of the date hereof, the Effective Date, the Closing Date and, if later, the Option Closing Date, as follows:
(a) Such Selling Stockholder is has now and (if such Selling Stockholder has agreed to sell Shares on the lawful owner of Option Closing Date) will have on the Option Closing Date, good, valid and marketable title to the Shares to be sold by such Selling Stockholder pursuant to this Agreement and hasthe Underwriters, and on the Closing Date or the Option Closing Date, as applicable, will have, good free and clear title to such Shares, free of all restrictions on transfer, any liens, charges, claims, encumbrances, pledges, security interests, equities and claims restrictions, shareholders' agreements, voting trusts, community property rights or defects in title whatsoever.
(b) Such ; such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, has full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, authority to sell, assign, transfer and deliver the Shares to be sold by it under this Agreement; and upon delivery of such Shares and payment of the purchase price therefor as contemplated in this Agreement, each of the Underwriters will receive good and marketable title to the Shares purchased by it from the Selling Stockholders, free and clear of any lien, charge, claim, encumbrance, pledge, security interest, restriction, shareholders' agreement, voting trust, community property right or defect in title whatsoever; and other than as described in the Registration Statement and the Prospectus or created hereby, there are no outstanding options, warrants, rights, or other agreements or arrangements requiring such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered at any time to transfer any Common Stock to be sold hereunder by or on behalf of such Selling Stockholder.
(db) The Such Selling Stockholder has all necessary partnership power and authority to enter into this Agreement and a Custody Agreement and Power of Attorney (as defined in paragraph (h) below) and to consummate the transactions provided for herein and therein; and each of this Agreement and a Custody Agreement and Power of such Selling Stockholder Attorney has been duly authorized, executed and delivered by such Selling Stockholder Stockholder. Each of this Agreement and is Custody Agreement and Power of Attorney constitutes a legal, valid and binding agreement of such Selling Stockholder, Stockholder enforceable against such Selling Stockholder in accordance with its respective terms and(assuming due execution and delivery thereof by the Underwriters and the Company or the Custodian (as defined below), pursuant as the case may be, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the power application of attorney conferred therebyequitable principles in any action, such Selling Stockholder haslegal or equitable, among other things, authorized its Attorney-In-Fact and except as rights to execute and deliver on such indemnity or contribution may be limited by applicable law. Such Selling Stockholder's behalf this Agreement execution and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(f) The execution, delivery and performance each of this Agreement and the a Custody Agreement and Power of Attorney and Custody Agreement of such Selling Stockholder, by or on behalf of such Selling StockholderAttorney, the compliance by each Selling Stockholder with all the provisions hereof performance hereunder and thereof, as applicable, thereunder and the consummation of the transactions contemplated hereby herein and therebytherein by such Selling Stockholder, as applicable, does not and will not (i) require any consent, approval, authorization with the giving of notice or other order of, the passage of time or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (iiboth) conflict with or constitute result in a breach of any of the terms or provisions of, or a default under, the partnership agreement and other similar organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any material indenture, loan agreement, mortgage, lease deed of trust, voting trust agreement, stockholders' agreement, note, loan or credit agreement, or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is or may be bound or to which any of its property of is or may be subject, or, in any material respect, any indebtedness, statute, judgment, decree, order, rule or regulation applicable to such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental arbitrator, court, regulatory body or administrative agency or other governmental agency or body, domestic or foreign, having jurisdiction over such Selling Stockholder or any property of such Selling Stockholderits activities or properties.
(gc) The information in Such Selling Stockholder has reviewed and is familiar with the Registration Statement, the registration statement originally filed with the Commission and each amendment thereto, the Prospectus and each preliminary prospectus. Neither the Registration Statement under nor the caption "Principal and Selling Stockholders" which specifically relates Prospectus contains any untrue statement (i) of a material fact relating to such Selling Stockholder does not, and will not on the Closing Date, contain any untrue statement of a material fact or omit omits to state any material fact required relating to be stated therein such Selling Stockholder and (ii) to the actual knowledge of such Selling Stockholder of any other material fact, or omits to state any other material fact, in each case necessary in order to make the statements therein, as to the Prospectus in the light of the circumstances under which they were made, not misleading.
. The aggregate obligations of a Selling Stockholder pursuant to (hii) At of this Section 2 and any time during recovery thereunder shall (1) be proportional to the period described in Section 5(d), if there is any change number of Shares sold by such Selling Stockholder to the total number of Shares sold in the information offering, and (2) together with any other liability of such Selling Stockholder referred to in Section 7(g8(f), not exceed the product of (A) the public offering price per share for the Common Stock less the applicable underwriting discount times (B) the number of Shares sold by such Selling Stockholder. All information furnished by or on behalf of such Selling Stockholder will immediately notify you of such changefor use in the Registration Statement, any preliminary prospectus, the Prospectus, or any amendment or supplement thereto is correct and complete in all material respects.
(d) There is no action, suit, proceeding, inquiry or investigation, pending or, to the knowledge of such Selling Stockholder, threatened against such Selling Stockholder or to which its property is subject which (i) challenges the validity of this Agreement or of any action taken or to be taken by such Selling Stockholder hereunder or (ii) which is required to be disclosed in the Registration Statement and the Prospectus.
(e) Such Selling Stockholder (i) has made an independent investment decision with respect not taken, and will not take, directly or indirectly, any action designed to its decision or which has constituted or which might reasonably be expected to offer and sell cause or result in stabilization or manipulation under the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time Exchange Act of the consummation price of the distribution of Common Stock any security of the Company to stockholders of Pittway Corporation pursuant to facilitate the Combination Agreement, no plan sale or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security resale of the CompanyShares.
(jf) Each Any certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or to counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(kg) With respect As soon as such Selling Stockholder is advised thereof, such Selling Stockholder will advise the Representative and confirm such advice in writing, (i) of receipt by such Selling Stockholder, or by any representative of such Selling Stockholder, of any communication from the Commission relating to the Firm Selling StockholdersRegistration Statement, such Firm Selling Stockholder agrees to cause each person the Prospectus or entity listed in the table in the section of the any preliminary prospectus, dated September 5or any notice or order of the Commission relating to the Company or such Selling Stockholder in connection with the transactions contemplated by this Agreement and (ii) of the happening of any event relating to such Selling Stockholder during any time when a prospectus relating to the Shares is required to be delivered that in the judgment of such Selling Stockholder makes any statement relating to such Selling Stockholder made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, 2000in light of the circumstances in which they were made, entitled not misleading.
(h) Each of the Selling Stockholders has executed and delivered a custody agreement and power of attorney (the "Principal Custody Agreement and Power of Attorney"), among Mesirow Financial, Inc. (the "Custodian"), Thom▇▇ ▇. ▇▇▇▇▇▇, ▇▇ni▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ Will▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. (▇▇reinafter collectively and individually referred to as the "Attorney-in-Fact") and such Selling Stockholders" Stockholder, to the Representative. Certificates in negotiable form, with blank stock powers, for the Shares have been placed in custody, for the purpose of making delivery of such Shares under this Agreement and the Custody Agreement and Power of Attorney. Each of the Selling Stockholders agrees that the Shares represented by the certificates held in custody for it under the Custody Agreement and Power of Attorney are for the benefit of and coupled with and subject to the interest hereunder of the Custodian, the Attorney-in-Fact, the Underwriters and the Company, that the arrangements made by such Selling Stockholder for such custody and the appointment of the Custodian and the Attorney-in-Fact by such Selling Stockholder are irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the liquidation of such Selling Stockholder or the occurrence of any other event. If such Selling Stockholder should be liquidated or if any other such event should occur before the delivery of the Shares hereunder, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Attorney-in-Fact and the Custodian pursuant to the Custody Agreement and Power of Attorney shall be as valid as if such liquidation or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact, or either of them, shall have received notice thereof.
(i) has not executed, on or Such Selling Stockholder will deliver to the Representative prior to or on the date hereof, an agreement to the effect set forth Effective Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"lieu thereof), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) Such such Selling Stockholder is now is, and at the time of delivery of its Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and hashas and, and on at the Closing Date time of delivery thereof (whether at the time of purchase or the Option Closing Dateadditional time of purchase, as applicablethe case may be), will have, good have valid and clear marketable title to such Shares, and upon delivery of and payment for such Shares, the Underwriters will acquire valid and marketable title to such Shares free and clear of all restrictions on transferany claim, lienslien, encumbrancesencumbrance, security interestsinterest, equities and claims whatsoever.community property right, restriction on transfer or other defect in title;
(b) Such such Selling Stockholder has, has and on at the Closing Date time of delivery of the Shares to be sold by such Selling Stockholders (whether at the time of purchase or the Option Closing Dateadditional time of purchase, as applicable, the case may be) will have, have full legal right, power and authoritycapacity, and all authorization and any approval required by law, to enter into this Agreement and, with respect to law (other than those imposed by the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder Act and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"securities or blue sky laws), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver such Shares in the Shares to be sold manner provided in this Agreement;
(c) this Agreement, the Custody Agreement, dated as of the date hereof, among the Company, as custodian, and the Selling Stockholders (the "CUSTODY AGREEMENT"), and the Lock-Up Agreement executed by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder Stockholder;
(d) when the Registration Statement becomes effective and is a valid at all times subsequent thereto through the latest of the time of purchase, additional time of purchase and binding agreement the termination of the offering of the Shares, the Registration Statement and any amendments thereto, solely as it relates to such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions contemplated hereby and thereby, as applicable, will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not contain an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(g) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does not, and will not on the Closing Date, 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 the Prospectus, and any supplements thereto, solely as it relates to such Selling Stockholder, will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(he) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(g), Power-of-Attorney has been duly executed and delivered by such Selling Stockholder will immediately notify you and is a legal, valid and binding agreement of such change.
(i) Such Selling Stockholder (i) enforceable in accordance with its terms; such Selling Stockholder has made an independent investment decision with respect to its decision to offer duly and sell irrevocably authorized the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time Representatives of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination AgreementSelling Stockholder, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated herebyStockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to you, on or prior deliver the Shares to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional be sold by such Selling Stockholder and receive payment therefor pursuant hereto; and
(f) the sale of such Selling Stockholder's Shares pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in the Prospectus.
(g) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any person listed on Schedule III hereto.action in violation of Regulation M.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each ----------------------------------------------------------- Selling Stockholder Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) Such such Selling Stockholder now is and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will be, the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and hashas and, and on at the Closing Date or the Option Closing Date, as applicabletime of delivery thereof, will have, good have valid and clear marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of all restrictions on transferany claim, lienslien, encumbrancesencumbrance, security interestsinterest, equities and claims whatsoever.community property right, restriction on transfer or other defect in title;
(b) Such such Selling Stockholder has, has and on at the Closing Date time of delivery of such Shares (whether the time of purchase or the Option Closing Dateadditional time of purchase, as applicable, the case may be) will have, full legal right, power and authoritycapacity, and all authorization and any approval required by law, to enter into this Agreement and, with respect to law (other than those imposed by the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder Act and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"securities or blue sky laws of certain jurisdictions), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the such Shares to be sold by such Selling Stockholder in the manner provided herein and therein.in this Agreement;
(c) This this Agreement has and the Custody Agreement among [ ], as custodian, and the Selling Stockholders (the "Custody Agreement") have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and each is a legal, valid and binding agreement of such Selling Stockholder, Stockholder enforceable in accordance with its terms andterms;
(d) when the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchase, pursuant additional time of purchase or the termination of the offering of the Shares, the information in the Registration Statement and Prospectus, and any supplements or amendments thereto, pertaining to the power of attorney conferred thereby, such Selling Stockholder hasin the Prospectus is complete and accurate in all material respects;
(e) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, among other thingson behalf of such Selling Stockholder, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.hereto;
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement sale of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions contemplated hereby and thereby, as applicable, will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder 's Shares pursuant to this Agreement is not an individual, or prompted by any indenture, loan agreement, mortgage, lease or other agreement or instrument to information concerning the Company which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.not set forth in the Prospectus; and
(g) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Significant Selling Stockholder does notidentified in Schedule D (the "Significant Selling Stockholder") represents and warrants to each Underwriter that, and will not on to the 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 knowledge of the circumstances under which they were made, not misleading.
(h) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(g), such Selling Stockholder will immediately notify you of such change.
(i) Such Significant Selling Stockholder (iwithout having conducted any investigation or inquiry) has made an independent investment decision with respect to its decision to offer that the representations and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock warranties of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Companycontained in Section 3 hereof are true and accurate in all material respects.
(j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Sources: Underwriting Agreement (Netopia Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to each Underwriter of the Underwriters that:
(a) Such all Selling Stockholders Statements (as defined below) with respect to such Selling Stockholder included (i) in the Registration Statement, any Preliminary Prospectus or the Prospectus complied and will comply in all material respects with all applicable provisions of the Act or (ii) in the Registration Statement did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such Selling Stockholder Statements not misleading; at no time during the period that begins on the earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the time of purchase did or will any Selling Stockholder Statements with respect to such Selling Stockholder in any such Preliminary Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Preliminary Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, contain any Selling Stockholder Statements with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the time of purchase, the latest additional time of purchase, if any, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares did or will the Prospectus, as then amended or supplemented, contain any Selling Stockholder Statements with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, contain any Selling Stockholder Statements with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading (as used herein "Selling Stockholder Statements" are the statements set forth in the sections of the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus entitled "Selling stockholders" and "Principal stockholders";
(b) such Selling Stockholder has not, prior to the execution of this Agreement, offered or sold any Shares by means of any "prospectus" (within the meaning of the Act), or used any "prospectus" (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the then most recent Preliminary Prospectus;
(c) neither the execution, delivery and performance of this Agreement or the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party nor the lawful owner sale by such Selling Stockholder of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date or the Option Closing Date, as applicable, will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and nor the consummation of the transactions contemplated hereby and therebyor thereby will conflict with, as applicableresult in any breach or violation of or constitute a default under (or constitute any event which with notice, will not lapse of time or both would result in any breach or violation of or constitute a default under) (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, the charter or bylaws or other organizational instruments of such Selling Stockholder, (ii) any indenture, loan agreement, mortgage, lease deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is its properties may be bound or affected, (iii) violate any federal, state, local or conflict with any applicable law foreign law, regulation or rule, (iv) or any rule, regulation, judgment, order rule or decree regulation of any court self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NASDAQ), or (v) any governmental body decree, judgment or agency having jurisdiction over order applicable to such Selling Stockholder or any property of its properties, except, in the case of clause (ii), for any such breach, violation, default or acceleration that is described in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus or that would not, individually or in the aggregate, have a Material Adverse Effect.
(d) 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, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NASDAQ), is required in connection with the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement or the consummation by such Selling Stockholder of the transactions contemplated hereby or by the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party other than (i) registration of the Shares under the Act, which has been effected or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance herewith, (ii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or (iii) under the rules and regulations of the NASD, all of which have been obtained;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or which has constituted or 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;
(f) there are no affiliations or associations between any member of the NASD and such Selling Stockholder., except as disclosed in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus; none of the proceeds received by such Selling Stockholder from the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement will be paid to a member of the NASD or any affiliate of (or person "associated with," as such terms are used in the Rules of the NASD) such member;
(g) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does not, and will not on the 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.
(h) At any time during the period described in Section 5(d), if there now is any change in the information referred to in Section 7(g), such Selling Stockholder will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadand, at the time of delivery of such Shares (whether the consummation time of purchase or any additional time of purchase, as the case may be), will be the lawful owner of the distribution number of Common Stock Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery of such Shares, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or any additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(h) such Selling Stockholder has and, at the time of delivery of the Company Shares to stockholders of Pittway Corporation be sold by such Selling Stockholder pursuant to this Agreement (whether the Combination time of purchase or any additional time of purchase, as the case may be), will have full legal right, power and capacity, and all authorizations and approvals required by law (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement and the Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such Selling Stockholder herein;
(i) this Agreement and the custody agreement (the "Custody Agreement"), dated November [__], 2006, between Mellon Investor Services LLC, as custodian (the "Custodian"), and such Selling Stockholder and the Power of Attorney to which such Selling Stockholder is a party have each been duly executed and delivered by (or, in the case of this Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.on behalf of) such Selling Stockholder;
(j) Each certificate signed by or such Selling Stockholder has duly and irrevocably authorized the Representative of the Selling Stockholders, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(k) the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement is not prompted by any information concerning the Company or any Subsidiary which is not set forth in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus;
(l) at the time of purchase and each additional time of purchase, all stock transfer or other taxes (other than income taxes), if any, that are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Stockholder to the several Underwriters hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with;
(m) pursuant to the Custody Agreement to which such Selling Stockholder is a party, certificates in negotiable form for the Shares to be sold by such Selling Stockholder pursuant to this Agreement have been placed in custody for the purpose of making delivery of such Shares in accordance with this Agreement; such Selling Stockholder agrees that (i) such Shares represented by such certificates are for the benefit of, and coupled with and subject to the interest of, the Custodian, the Representative of the Selling Stockholders, the Underwriters and the Company, (ii) the arrangements made by such Selling Stockholder for custody and for the appointment of the Custodian and the Representative of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability or incapacity of such Selling Stockholder (or, if such Selling Stockholder is not an individual, the liquidation, dissolution, merger or consolidation of such Selling Stockholder) or the occurrence of any other event (each, an "Event"); if an Event occurs before the delivery of the Shares hereunder, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of the Power of Attorney to which such Selling Stockholder is a party, the Custody Agreement to which such Selling Stockholder is a party and this Agreement, and actions taken by the Custodian and the Representative of the Selling Stockholders pursuant to such Power or Attorney or such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Custodian or the Representative of the Selling Stockholders, or either of them, shall have received notice thereof; and In addition, any certificate signed by any Selling Stockholder (or, with respect to any Selling Stockholder that is not an individual, any officer of such Selling Stockholder or of any of such Selling Stockholder's subsidiaries) or by the Representative of the Selling Stockholders and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters Stockholder, as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III heretoeach Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder represents and warrants to each Underwriter thatto, and agrees with, the Underwriters as of the date hereof, the Effective Date, the Closing Date and, if later, the Option Closing Date, as follows:
(a) Such Selling Stockholder is has now and (if such Selling Stockholder has agreed to sell Shares on the lawful owner of Option Closing Date) will have on the Option Closing Date, good, valid and marketable title to the Shares to be sold by such Selling Stockholder pursuant to this Agreement and hasthe Underwriters, and on the Closing Date or the Option Closing Date, as applicable, will have, good free and clear title to such Shares, free of all restrictions on transfer, any liens, charges, claims, encumbrances, pledges, security interests, equities and claims restrictions, shareholders' agreements, voting trusts, community property rights or defects in title whatsoever.
(b) Such ; such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, has full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, authority to sell, assign, transfer and deliver the Shares to be sold by it under this Agreement; and upon delivery of such Shares and payment of the purchase price therefor as contemplated in this Agreement, each of the Underwriters will receive good and marketable title to the Shares purchased by it from the Selling Stockholders, free and clear of any lien, charge, claim, encumbrance, pledge, security interest, restriction, shareholders' agreement, voting trust, community property right or defect in title whatsoever; and other than as described in the Registration Statement and the Prospectus or created hereby, there are no outstanding options, warrants, rights, or other agreements or arrangements requiring such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered at any time to transfer any Common Stock to be sold hereunder by or on behalf of such Selling Stockholder.
(db) The Such Selling Stockholder has all necessary partnership power and authority to enter into this Agreement and a Custody Agreement and Power of Attorney (as defined in paragraph (n) below) and to consummate the transactions provided for herein and therein; and each of this Agreement and a Custody Agreement and Power of such Selling Stockholder Attorney has been duly authorized, executed and delivered by such Selling Stockholder Stockholder. Each of this Agreement and is Custody Agreement and Power of Attorney constitutes a legal, valid and binding agreement of such Selling Stockholder, Stockholder enforceable against such Selling Stockholder in accordance with its respective terms and(assuming due execution and delivery thereof by the Underwriters and the Company or the Custodian (as defined below), pursuant as the case may be, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the power application of attorney conferred therebyequitable principles in any action, such Selling Stockholder haslegal or equitable, among other things, authorized its Attorney-In-Fact and except as rights to execute and deliver on such indemnity or contribution may be limited by applicable law. Such Selling Stockholder's behalf this Agreement execution and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(f) The execution, delivery and performance each of this Agreement and the Power of Attorney and a Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholderand Power and Attorney, the compliance by each Selling Stockholder with all the provisions hereof performance hereunder and thereof, as applicable, thereunder and the consummation of the transactions contemplated hereby herein and therebytherein by such Selling Stockholder, as applicable, does not and will not (i) require any consent, approval, authorization with the giving of notice or other order of, the passage of time or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (iiboth) conflict with or constitute result in a breach of any of the terms or provisions of, or a default under, the partnership agreement and other similar organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any material indenture, loan agreement, mortgage, lease deed of trust, voting trust agreement, stockholders' agreement, note, loan or credit agreement, or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is or may be bound or to which any of its property of is or may be subject, or, in any material respect, any indebtedness, statute, judgment, decree, order, rule or regulation applicable to such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental arbitrator, court, regulatory body or administrative agency or other governmental agency or body, domestic or foreign, having jurisdiction over such Selling Stockholder or any property of such Selling Stockholderits activities or properties.
(gc) The information in Such Selling Stockholder has reviewed and is familiar with the Registration Statement, the registration statement originally filed with the Commission and each amendment thereto, the Prospectus and each preliminary prospectus. Neither the Registration Statement under nor the caption "Principal and Selling Stockholders" which specifically relates Prospectus contains any untrue statement (i) of a material fact relating to such Selling Stockholder does not, and will not on the Closing Date, contain any untrue statement of a material fact or omit omits to state any material fact required relating to be stated therein such Selling Stockholder and (ii) to the actual knowledge of such Selling Stockholder of any other material fact, or omits to state any other material fact, in each case necessary in order to make the statements therein, as to the Prospectus in the light of the circumstances under which they were made, not misleading.
. The aggregate obligations of a Selling Stockholder pursuant to (hii) At of this Section 2 and any time during recovery thereunder shall (1) be proportional to the period described in Section 5(d), if there is any change number of Shares sold by such Selling Stockholder to the total number of Shares sold in the information offering, and (2) together with any other liability of such Selling Stockholder referred to in Section 7(g8(f), not exceed the product of (A) the public offering price per share for the Common Stock less the applicable underwriting discount times (B) the number of Shares sold by such Selling Stockholder. All information furnished by or on behalf of such Selling Stockholder will immediately notify you of such changefor use in the Registration Statement, any preliminary prospectus, the Prospectus, or any amendment or supplement thereto is correct and complete in all material respects.
(d) There is no action, suit, proceeding, inquiry or investigation, pending or, to the knowledge of such Selling Stockholder, threatened against such Selling Stockholder or to which its property is subject which (i) challenges the validity of this Agreement or of any action taken or to be taken by such Selling Stockholder hereunder or (ii) which is required to be disclosed in the Registration Statement and the Prospectus.
(e) Such Selling Stockholder (i) has made an independent investment decision with respect not taken, and will not take, directly or indirectly, any action designed to its decision or which has constituted or which might reasonably be expected to offer and sell cause or result in stabilization or manipulation under the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time Exchange Act of the consummation price of the distribution of Common Stock any security of the Company to stockholders of Pittway Corporation pursuant to facilitate the Combination Agreement, no plan sale or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security resale of the CompanyShares.
(jf) Each Any certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or to counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(kg) With respect As soon as such Selling Stockholder is advised thereof, such Selling Stockholder will advise the Representative and confirm such advice in writing, (i) of receipt by such Selling Stockholder, or by any representative of such Selling Stockholder, of any communication from the Commission relating to the Firm Selling StockholdersRegistration Statement, such Firm Selling Stockholder agrees to cause each person the Prospectus or entity listed in the table in the section of the any preliminary prospectus, dated September 5or any notice or order of the Commission relating to the Company or such Selling Stockholder in connection with the transactions contemplated by this Agreement and (ii) of the happening of any event relating to such Selling Stockholder during any time when a prospectus relating to the Shares is required to be delivered that in the judgment of such Selling Stockholder makes any statement relating to such Selling Stockholder made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, 2000in light of the circumstances in which they were made, entitled not misleading.
(h) Each of the Selling Stockholders has executed and delivered a custody agreement and power of attorney (the "Principal Custody Agreement and Power of Attorney"), among Continental Stock Transfer & Trust Company (the "Custodian"), Thom▇▇ ▇. ▇▇▇▇▇▇, ▇▇ni▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ Will▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. (▇▇reinafter collectively and individually referred to as the "Attorney-in-Fact") and such Selling Stockholders" Stockholder, to the Representative. Certificates in negotiable form, with blank stock powers, for the Shares have been placed in custody, for the purpose of making delivery of such Option Shares under this Agreement and the Custody Agreement and Power of Attorney. Each of the Selling Stockholders agrees that the Shares represented by the certificates held in custody for it under the Custody Agreement and Power of Attorney are for the benefit of and coupled with and subject to the interest hereunder of the Custodian, the Attorney-in-Fact, the Underwriters and the Company, that the arrangements made by such Selling Stockholder for such custody and the appointment of the Custodian and the Attorney-in-Fact by such Selling Stockholder are irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the liquidation of such Selling Stockholder or the occurrence of any other event. If such Selling Stockholder should be liquidated or if any other such event should occur before the delivery of the Shares hereunder, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Attorney-in-Fact and the Custodian pursuant to the Custody Agreement and Power of Attorney shall be as valid as if such liquidation or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact, or either of them, shall have received notice thereof.
(i) has not executed, on or Such Selling Stockholder will deliver to the Representative prior to or on the date hereof, an agreement to the effect set forth Effective Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"lieu thereof), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) Such to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and hashas and, and on at the Closing Date or the Option Closing Date, as applicabletime of delivery thereof, will have, good have valid and clear marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of all restrictions on transferany claim, lienslien, encumbrancesencumbrance, security interestsinterest, equities and claims whatsoever.community property right, restriction on transfer or other defect in title;
(bc) Such to the extent that such Selling Stockholder haswill be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to the Custodian, such Selling Stockholder has and on at the Closing Date time of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the Option Closing Dateadditional time of purchase, as applicable, the case may be) will have, full legal right, power and authoritycapacity, and all authorization and any approval required by law, to enter into this Agreement and, with respect to law (other than those imposed by the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder Act and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"securities or blue sky laws of certain jurisdictions), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver such options exercisable for the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will have, full legal right, power and capacity, and any approval required by law (other than those imposed by the Act and the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver such Shares in the manner provided herein and therein.in this Agreement;
(ce) This this Agreement has and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder, Stockholder enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, terms;
(f) such Selling Stockholder hashas duly and irrevocably authorized the Representatives of the Selling Stockholders, among other thingson behalf of such Selling Stockholder, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant to this Agreement.hereto;
(eg) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement sale of such Selling Stockholder’s Shares pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in the Prospectus; and
(h) the Prospectus and any amendment or supplement thereto, by or on behalf the date of such Selling Stockholderfiling thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as if applicable, and at the consummation additional time of the transactions contemplated hereby and therebypurchase, as applicable, did not or will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not include an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(g) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does not, and will not on the Closing Date, contain any untrue statement of a material fact or omit to state any 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.
(h) At any time during ; the period described in Section 5(d)Registration Statement did not when it became effective, if there is any change in the information referred to in Section 7(g), such Selling Stockholder does not and will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadnot, at the time of purchase and any additional time of purchase, 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 consummation of statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the distribution of Common Stock of Preliminary Prospectus Supplement, the Company to stockholders of Pittway Corporation pursuant to Registration Statement or the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder and delivered (as defined herein) makes any warranty or representation with respect to any statement contained in the Underwriters Prospectus or counsel for the Underwriters shall be deemed Registration Statement other than the Selling Stockholder Information (as defined below) relating to be a representation and warranty by such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchase, additional time of purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed Information (as defined herein) concerning such Non-Management Selling Stockholder included in the table in Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the section Underwriters acknowledge that the name, address and number of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock beneficially owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.such
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders, severally (solely with respect to such Selling Stockholder) and not jointly, represents and warrants to to, and agrees with, each Underwriter of the Underwriters and the Company that:
(a) Such Except (i) as will have been obtained on or prior to the Closing Date and on any Option Closing Date, as the case may be, for the registration under the Act of the Shares; (ii) as may be required under foreign or state securities (or Blue Sky) laws or by FINRA or by the New York Stock Exchange in connection with the purchase and distribution of the Shares by the Underwriters; and (iii) as would not impair in any material respect the ability of such Selling Stockholder is to consummate its obligations hereunder, all consents, approvals, authorizations and orders necessary for the lawful owner execution and delivery by such Selling Stockholder of this Agreement, and the Power of Attorney and the Custody Agreement referred to below and for the sale and delivery of the Shares to be sold by such Selling Stockholder pursuant hereunder, have been obtained or will be obtained on or prior to this Agreement and has, and on the Closing Date or the and on any Option Closing Date, as applicable, will have, good the case may be; and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, has full legal right, power and authority, and all authorization and approval required by law, authority to enter into this Agreement and, with respect to the Firm Selling StockholdersAgreement, the Power of Attorney and the Custody Agreement signed by such Firm Selling Stockholder referred to below and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇has or will have at the Closing Date and on any Option Closing Date, ▇▇ as the case may be, as Attorney- In-Fact full right, power and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.hereunder;
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(db) The Power sale of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of hereunder and payment for the Shares to be sold compliance by such Selling Stockholder pursuant to with this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and the Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions herein and contemplated hereby and thereby, as applicable, in the General Disclosure Package will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholderany statute, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease deed of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is bound subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of such Selling Stockholder or (iii) violate or conflict with result in any applicable law violation of any statute or any ruleorder, regulation, judgment, order rule or decree regulation of any court or any governmental agency or body or agency having jurisdiction over such Selling Stockholder or any property or assets of such Selling Stockholder., except in the case of (i) and (iii), as would not, individually or in the aggregate, reasonably be expected to materially impact such Selling Stockholder’s ability to perform its obligations under this Agreement, the Power of Attorney and the Custody Agreement;
(gc) Upon payment for the Shares to be sold by such Selling Stockholder 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 information 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),(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, such Selling Stockholder 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) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that might reasonably be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(e) To the extent that any statements or omissions made in the Registration Statement under Statement, the caption "Principal General Disclosure Package, the Prospectus or any amendment or supplement thereto are made in reliance upon and Selling Stockholders" which specifically relates to such in conformity with the Selling Stockholder does Information (as defined below), such Registration Statement and General Disclosure Package did not, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will not on not, when they become effective or are filed with the Closing DateCommission, 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 thereintherein not misleading. “Selling Stockholder Information,” severally with respect to each Selling Stockholder, consists solely of the information with respect to such Selling Stockholder included in the light beneficial ownership table under the caption “Selling Stockholders” in the General Disclosure Package and the Prospectus;
(f) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the circumstances under which they were made, not misleading.
(h) At any time during Tax Equity and Fiscal Responsibility Act of 1982 with respect to the period described in Section 5(d), if there is any change in the information referred to in Section 7(g)transactions herein contemplated, such Selling Stockholder will immediately notify deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W‑9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof); 15
(g) Certificates in negotiable form or book-entry securities entitlements representing all of the Shares to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the “Custody Agreement”), duly executed and delivered by such Selling Stockholder to Continental Stock Transfer & Trust Company, as custodian (the “Custodian”), and such Selling Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the “Power of Attorney”), appointing the person or persons indicated in Schedule I hereto, and each of them, as such Selling Stockholder’s attorneys‑in‑fact (the “Attorneys‑in‑Fact” or any of them the “Attorney-in-Fact”) with authority to execute and deliver this Agreement on behalf of such change.Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 3 hereof, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement; and
(ih) Such The Shares held in custody for such Selling Stockholder (i) has under the Custody Agreement are subject to the interests of the Underwriters hereunder; the arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the Attorneys‑in‑Fact by the Power of Attorney, are to that extent irrevocable; the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder or, in the case of an independent investment decision with respect to its decision to offer and sell 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, limited liability company or corporation, or by the occurrence of any other event; if any individual Selling Stockholder 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, limited liability company or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadto be sold by such Selling Stockholder hereunder, at certificates representing the time of the consummation of the distribution of Common Stock of the Company Shares to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed be sold by such Selling Stockholder hereunder shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and delivered conditions of this Agreement and the Custody Agreement; and actions taken by the Attorneys‑in‑Fact pursuant to the Underwriters or counsel for the Underwriters Powers of Attorney shall be deemed to be a representation and warranty by as valid as if such Selling Stockholder to death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Underwriters as to Custodian, the matters covered thereby.
(k) With respect to the Firm Selling StockholdersAttorneys‑in‑Fact, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section any of the preliminary prospectusthem, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder received notice of such death, incapacity, termination, dissolution or any person listed on Schedule III heretoother event.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is (or, in the case solely of Dan P. Kourkoumelis, on the Closi▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇) ▇▇e lawful owner of the Firm Shares and Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement and hashas (or, in the case solely of Dan P. Kourkoumelis, on the Closi▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇), and on the Closing Date or the Option Closing Date, as applicable, will have, good and clear title to such Firm Shares and Additional Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoeverwhatsoever (subject to any lien created hereby).
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholdersif applicable, the Power of Attorney and Custody Agreement (the "Custody Agreement") signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may beCompany, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT")Custodian, relating to the deposit of the Firm Shares and Additional Shares to be sold by such Firm Selling Stockholder and and, if applicable, the Power of Attorney (the "Power of Attorney") with respect to the appointment of certain individuals as such Selling Stockholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Firm Shares and Additional Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Each of the Custody Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder (if applicable) has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant terms.
(e) Pursuant to the power Power of attorney conferred therebyAttorney (if applicable), such Selling Stockholder has, among other things, authorized its Attorney-In-Fact the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Firm Shares and Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(ef) Upon delivery of and payment for the Firm Shares and Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Firm Shares and Additional Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(fg) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney and Custody Agreement (if applicable) of such Selling Stockholder, Stockholder by or on behalf of such Selling Stockholder, the compliance by each such Selling Stockholder with all the provisions hereof and thereof, as applicable, thereof and the consummation of the transactions contemplated hereby and thereby, as applicable, thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the Act and the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder, other than, in the case of clauses (ii) and (iii), any conflict or violation that would not affect the validity of, or adversely affect the Selling Stockholder's ability to consummate, the transactions contemplated hereunder.
(gh) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates and furnished in writing to the Company by or on behalf of such Selling Stockholder for inclusion therein does not, and will not on the 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.
(hi) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Act, such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
(j) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(g7(h), such Selling Stockholder will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(jk) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. (a) Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to each Underwriter Underwriter, that:
(ai) Such such Selling Stockholder now is the lawful owner of the number of Shares, or stock options exercisable for the number of Shares, to be sold by such Selling Stockholder pursuant to this Agreement and, at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will be, the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement Agreement; such Selling Stockholder now has valid and hasmarketable title to such Shares or stock options exercisable for such Shares and, and on at the Closing Date or the Option Closing Date, as applicabletime of delivery thereof, will have, good have valid and clear marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of all restrictions on transferany claim, lienslien, encumbrancesencumbrance, security interestsinterest, equities and claims whatsoever.community property right, restriction on transfer or other defect in title;
(bii) Such such Selling Stockholder has, has and on at the Closing Date time of delivery of such Shares (whether the time of purchase or the Option Closing Dateadditional time of purchase, as applicable, the case may be) will have, full legal right, power and authoritycapacity, and all authorization and any approval required by law, to enter into this Agreement and, with respect to law (other than those imposed by the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder Act and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"securities or blue sky laws of certain jurisdictions), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the such Shares to be sold by such Selling Stockholder in the manner provided herein and therein.in this Agreement;
(ciii) This this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and the Custody Agreement of between H▇▇▇▇▇ ▇▇▇▇▇▇ LLP, as custodian, and such Selling Stockholder has (each such agreement, a “Custody Agreement” and, collectively, the “Custody Agreements”) have been duly authorized, executed and delivered by such Selling Stockholder and is when executed and delivered by the other parties thereto each will be a legal, valid and binding agreement of such Selling Stockholder, Stockholder enforceable in accordance with its terms andterms, pursuant except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and general principles of equity;
(iv) when the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchase, additional time of purchase or the termination of the offering of the Shares, each of the Registration Statement and the Prospectus will not contain an untrue statement of a material fact omit to state a material fact necessary in order to make the power statements therein (in the case of attorney conferred therebythe Prospectus, in the light of the circumstances under which they were made) not misleading;
(v) such Selling Stockholder hashas duly and irrevocably authorized the Representatives of the Selling Stockholders, among other thingson behalf of such Selling Stockholder, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(vi) the sale of such Selling Stockholder’s Shares pursuant to this Agreement.Agreement is not prompted by any information concerning the Company which is not set forth in the Prospectus;
(evii) Upon delivery such Selling Stockholder has not taken any action designed, or which has constituted or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(viii) there are no affiliations or associations between any member of the NASD and payment for such Selling Stockholder, except as set forth in each of the Registration Statement and the Prospectus;
(ix) other than as permitted by the Act, such Selling Stockholder has not distributed, nor will such Selling Stockholder distribute, any prospectus or other offering material in connection with the offering and sale of the Shares;
(x) at the time of purchase, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of several Underwriters hereunder will have been fully paid or provided for by such Selling Stockholder and all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.laws imposing such taxes will have been fully complied with; and
(fxi) The the execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder, by or on behalf of such Selling StockholderAgreement, the compliance by each Selling Stockholder with all sale of the provisions hereof and thereof, as applicable, Shares and the consummation of the transactions contemplated hereby and thereby, as applicable, will not (i) require any consent, approval, authorization or other order of, or qualification conflict with, result in any court breach or governmental body or agency (except such as may be required under the securities or Blue Sky laws violation of the various states), (ii) conflict with or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or ) (A) any indenture, loan agreement, mortgage, lease contract or other agreement or instrument to which such the Selling Stockholder is a party or by which such the Selling Stockholder or any property of the Selling Stockholder’s properties may be bound or affected, or (B) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Selling Stockholder, except in the case of clause (A) for such conflicts, breaches, violations or defaults as would not have a material adverse effect on the Selling Stockholder’s ability to consummate the transactions contemplated hereby. In addition, any certificate signed by such Selling Stockholder is bound and delivered to the Underwriters or (iii) violate or conflict counsel for the Underwriters in connection with any applicable law or any rule, regulation, judgment, order or decree the offering of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of the Shares shall be deemed to be a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
(gb) The information Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that each Preliminary Prospectus, at the time of filing thereof, and the last Preliminary Prospectus distributed in connection with the Registration Statement under offering of the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does Shares did not, as of its date, and will does not on the Closing Date, contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(h) At any time during ; and the period described in Section 5(d)Registration Statement did not when it became effective, if there is any change in the information referred to in Section 7(g), such Selling Stockholder does not and will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadnot, at the time of purchase and any additional time of purchase, 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 consummation statements therein not misleading and the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the distribution of Common Stock of circumstances under which they were made, not misleading; provided, however, that such Selling Stockholder makes no warranty or representation with respect to any statement contained in the Company to stockholders of Pittway Corporation pursuant to Preliminary Prospectus, the Combination Agreement, no plan Registration Statement or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Selling Stockholder and delivered Underwriter through you to the Underwriters or counsel Company expressly for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed use in the table in Preliminary Prospectus, the section of Registration Statement or the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III heretoProspectus.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally represents and warrants to, and agrees with, the Underwriters, with respect to each Underwriter such Selling Stockholder only, that:
(a) Such Selling Stockholder is on the lawful owner Closing Date and the Additional Closing Date, if any, will have good and marketable title to the Selling Stockholders Firm Shares and, if applicable, any Additional Shares to be sold by such Selling Stockholder hereunder and full right, power and authority to enter into this Agreement and Custody Agreement and Power of Attorney (each, a "Custody Agreement and Power of Attorney"), relating to the deposit of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date or the Option Closing Date, appointing certain individuals as applicable, will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
Selling Stockholder's attorneys-in-fact (b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the an "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-Inin-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Selling Stockholder Firm Shares and any such Additional Shares to be sold by such Selling Stockholder in as set forth on Schedule II hereto, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, security interests and claims; and upon the manner provided delivery and payment for such Shares hereunder, the several Underwriters will acquire good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, security interests and claims.
(b) This Agreement and the Custody Agreement and Power of Attorney executed by such Selling Stockholder and the transactions contemplated herein and thereintherein have been duly and validly authorized by each Selling Stockholder, and this Agreement and each Custody Agreement and Power of Attorney has been duly and validly executed and delivered by each Selling Stockholder.
(c) This The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby will not (A) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Stockholder pursuant to any agreement, instrument, franchise, license or permit to which such Selling Stockholder is a party or by which any of his properties or assets may be bound or (B) violate or conflict with any provisions of any partnership agreement, trust agreement or other organizational documents, as the case may be, of such Selling Stockholder or any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Stockholder or any of his properties or assets. No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Stockholder or any of his properties or assets is required for the execution, delivery and performance of this Agreement or the Custody Agreement and Power of Attorney by such Selling Stockholder or the consummation of the transactions contemplated hereby or thereby, except the registration under the Act of the Shares to be sold by such Selling Stockholder, filings under the Exchange Act resulting from the sale of the Selling Stockholder Firm Shares and the Additional Shares, if any, to be sold by such Selling Stockholder and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares to be sold by such Selling Stockholder by the Underwriters.
(d) The Custody Agreement and Power of Attorney executed by such Selling Stockholder has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms andterms, and pursuant to such Custody Agreement and Power of Attorney (subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws affecting the power enforcement of attorney conferred thereby, creditors' rights generally and to equitable principles) such Selling Stockholder has, among other things, authorized its Attorneythe designated Attorneys-Inin-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder an Attorney-in-Fact may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Such Selling Stockholder pursuant has not taken nor will take, directly or indirectly, any action designed to this Agreementcause, good and clear title result in, or which constitute or which might reasonably be expected to such Shares will pass constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the Underwriters, free sale or resale of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoeverthe Shares.
(f) The execution, delivery and performance of this Agreement and At the Power of Attorney and Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation time of the transactions contemplated hereby and thereby, as applicable, will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws effectiveness of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(g) The information in the Registration Statement or the effectiveness of the post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to the Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission, when any document is filed under the caption "Principal Exchange Act and Selling Stockholders" which specifically relates at the Closing Date and the Additional Closing Date, if any, the Registration Statement and the Prospectus and any amendments thereof and supplements thereto, insofar as they relate to such Selling Stockholder does not(in his capacity as Selling Stockholder), comply or will comply in all material respects with the applicable provisions of the Act and the Regulations and the Exchange Act and the respective rules and regulations thereunder and do not or will not on the Closing Date, contain any an untrue statement of a material fact and do not or will not omit to state any material fact required to be stated therein or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances in which they were made, not misleading. When any related Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration Statement or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, insofar as such Preliminary Prospectus relates to such Selling Stockholder (in his capacity as a Selling Stockholder), such Preliminary Prospectus and any amendments thereof and supplements thereto complied in all material respects with the applicable provisions of the Act and the Regulations and the Exchange Act and the respective rules and regulations thereunder and did not contain an untrue statement of a material fact and did not omit to state 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, made not misleading. No representation and warranty is made in this subsection (f), however, with respect to any information contained in or omitted from the Registration Statement or the Prospectus or any related Preliminary Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through you as herein stated expressly for use in connection with the preparation thereof.
(hg) At any time during the period described commencing on the first business day after the date of this Agreement and from time to time thereafter for such period as in Section 5(d)the reasonable opinion of Underwriters' Counsel (as defined below) a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, if there is any change in the information referred to in Section 7(g)2(f) above, such Selling Stockholder will immediately promptly notify you and the Company of such change.
(ih) Such Selling Stockholder agrees with the Company and the Underwriters, except as provided in this Agreement, not to sell, offer or agree to sell, grant any option for the sale of, pledge or otherwise dispose of, directly or indirectly, any Common Stock for a period of 180 days after this Agreement becomes effective without your prior written consent.
(i) has made an independent investment decision 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 its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholderstransactions herein contemplated, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or deliver to you prior to or on the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, Closing Date and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Additional Closing Date, if applicable, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder properly completed and executed United States Treasury Department Form W-9 (or any person listed on Schedule III heretoother applicable form or statement specified by Treasury Department regulations in lieu thereof).
Appears in 1 contract
Sources: Underwriting Agreement (Zygo Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder hereby represents and warrants to each Underwriter thatas of the date hereof, the Firm Shares Closing Date and, if such Selling Stockholder is selling Option Shares, as of each such Option Shares Closing Date (if any), as follows:
(a) Such Selling Stockholder is has previously delivered to the lawful owner Representatives a Lock-Up Agreement in the form attached hereto as Exhibit A; the terms of such Lock-Up Agreement are incorporated herein by reference.
(b) Such Selling Stockholder has caused certificates representing all of the Shares to be sold by such Selling Stockholder hereunder to be delivered to the Company (the “Custodian”) in negotiable form and accompanied by an executed assignment form, with a signature by or on behalf of such Selling Stockholder appropriately guaranteed, to be held in custody by the Custodian for delivery pursuant to the provisions of this Agreement and hasan agreement dated , 2007 between the Custodian and such Selling Stockholder substantially in the form attached hereto as Exhibit B (the “Custody Agreement”). The representations and warranties of such Selling Stockholder in the Custody Agreement are, and on the each Closing Date or the Option Closing Datewill be, as applicable, will have, good true and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoevercorrect.
(bc) Such Selling Stockholder has, and on has granted an irrevocable power of attorney substantially in the Closing Date or form attached hereto as Exhibit C (the Option Closing Date, “Power of Attorney”) to the persons named therein as applicable, will have, full legal right, power and such Selling Stockholder’s attorneys-in-fact (“Attorneys-in-Fact”) with the authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power on behalf of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sellexecute, assigndeliver and perform this Agreement, transfer and deliver to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder to or for the account of the Underwriters and to execute and deliver any other document, instrument and take any and all other actions necessary or desirable in connection with the consummation of the transactions contemplated by this Agreement, the Custody Agreement and the Power of Attorney. The representations and warranties of such Selling Stockholder in the manner provided herein Power of Attorney are, and thereinon each Closing Date will be, true and correct.
(cd) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement has have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(de) The Neither the execution, delivery and performance of this Agreement, the Custody Agreement, the Power of Attorney and Custody the Lock-Up Agreement by or on behalf of such Selling Stockholder has been duly authorized, executed and delivered nor the consummation of any of the transactions contemplated hereby or thereby by such Selling Stockholder and (including the sale of the Shares to be sold by it hereunder) will give rise to a right to terminate or accelerate the due date of any payment under, or conflict with or result in a breach or violation of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any Authorization or Permit under, or result in the creation or imposition of any lien, charge, mortgage, pledge, claim, security interest, limitation, restriction, preferential arrangement, defect or encumbrance of any kind upon the Shares to be sold by it pursuant to, as applicable, (i) any bond, debenture, note, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a valid and binding party or by which it is bound or to which the Shares to be sold by it are subject, (ii) any Permit or applicable Law, or (iii) any provision of the certificate of incorporation or by-laws, operating agreement, partnership agreement or any other organizational instrument of such Selling Stockholder, enforceable except as may be required under the Securities Act and state and foreign securities and Blue Sky laws or for such Authorizations or Permits that have already been made or obtained and are in accordance with its terms and, pursuant to the power of attorney conferred thereby, such full force and effect.
(f) Such Selling Stockholder has, among other thingsand on the Firm Shares Closing Date and the Option Shares Closing Date, authorized its Attorney-In-Fact if applicable, will have, good, valid and marketable title to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that the Shares to be sold by such Selling Stockholder hereunder free and clear of any lien, charge, mortgage, pledge, claim, security interest, preferential arrangement, defect or other encumbrance, including any restriction on transfer, except as otherwise described in the Registration Statement and Prospectus.
(g) Except as may deem be required under the Securities Act and state and foreign securities and Blue Sky laws or for such Authorizations that have already been made or obtained and are in full force and effect, no Authorization is necessary or desirable in connection with required for such Stockholder to execute, deliver and perform this Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement and consummate the transactions contemplated hereby (including to sell the Shares to be sold by it hereunder) and thereby thereby.
(h) Such Selling Stockholder has full legal right, power and authority to execute, deliver and perform this Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement and consummate the transactions contemplated hereby (including to sell the Shares to be sold by it hereunder) and thereby, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, full legal right, power and authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreementhereunder.
(ei) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreementhereunder, the Selling Stockholders will pass and the Underwriters will receive good and clear valid title to such Shares will pass to the Underwritersfree and clear of any lien, free of all restrictions on transfercharge, liensmortgage, encumbrancespledge, claim, security interestsinterest, equities and claims whatsoeverpreferential arrangement, defect or other encumbrance.
(fj) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement of All information relating to such Selling StockholderStockholder furnished in writing by such Selling Stockholder expressly for use in the Registration Statement, the Statutory Prospectus, the Prospectus and any Issuer Free Writing Prospectus is, and on each Closing Date will be, true and correct, 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.
(k) To the extent that any statements or omissions made in the Registration Statement, the Statutory Prospectus, the Prospectus or any Issuer Free Writing Prospectus (or any amendments thereof or supplements thereto) are made in reliance upon, and in conformity with, the information furnished in writing by or on behalf of such Selling StockholderStockholder specifically for use therein, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions contemplated hereby and thereby, as applicable, will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except respect to such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(g) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates relating to such Selling Stockholder does (x) on the Effective Date, the Registration Statement complied, and on the date of the Prospectus, the date any post-effective amendment to the Registration Statement becomes effective, the date any supplement or amendment to the Prospectus is filed with the Commission and each Closing Date, the Registration Statement (and any post-effective amendment thereto), the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects with the requirements of the Securities Act and the Rules and the Exchange Act and the rules and regulations of the Commission thereunder, (y) the Registration Statement did not, and will not on as of the Closing Effective Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading; and on the other dates referred to above neither the Registration Statement (or any post-effective amendment thereto) nor the Prospectus (or any amendment thereof or supplement thereto) will contain any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, in and (z) when any Preliminary Prospectus was first filed with the light Commission (whether filed as part of the circumstances under which they were madeRegistration Statement or any amendment thereto or pursuant to Rule 424(a) of the Rules) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus as amended or supplemented complied in all material respects with the applicable provisions of the Securities Act and the Rules and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(h) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(g), such Selling Stockholder will immediately notify you of such change.
(il) Such Selling Stockholder (i) has made an independent investment decision with respect not taken, nor will it take, directly or indirectly, any action designed to its decision or that might reasonably be expected to offer and sell cause or result in, or that constituted or might reasonably be expected to constitute, the Shares stabilization or manipulation of the price of the Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock any security of the Company to stockholders of Pittway Corporation pursuant to facilitate the Combination Agreement, no plan sale or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security resale of the CompanyShares.
(jm) Each certificate signed by or on behalf of such No Selling Stockholder and delivered to the Underwriters has prepared, used or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters referred to, nor will it prepare, use or refer to, any “free writing prospectus” (as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed defined in the table in the section Rule 405 of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"Rules), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to each Underwriter of the Underwriters that:
(a) Such all Selling Stockholders Statements (as defined below) with respect to such Selling Stockholder included (i) in the Registration Statement, any Preliminary Prospectus or the Prospectus complied and will comply in all material respects with all applicable provisions of the Act or (ii) in the Registration Statement did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such Selling Stockholder Statements not misleading; at no time during the period that begins on the earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the time of purchase did or will any Selling Stockholder Statements with respect to such Selling Stockholder in any such Preliminary Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Preliminary Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, contain any Selling Stockholder Statements with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the time of purchase, the latest additional time of purchase, if any, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares did or will the Prospectus, as then amended or supplemented, contain any Selling Stockholder Statements with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, contain any Selling ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading (as used herein “Selling Stockholder Statements” are the statements set forth in the sections of the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus entitled “Selling stockholders” and “Principal stockholders”);
(b) such Selling Stockholder has not, prior to the execution of this Agreement, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act), or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the then most recent Preliminary Prospectus;
(c) neither the execution, delivery and performance of this Agreement or the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party nor the lawful owner sale by such Selling Stockholder of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date or the Option Closing Date, as applicable, will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and nor the consummation of the transactions contemplated hereby and therebyor thereby will conflict with, as applicableresult in any breach or violation of or constitute a default under (or constitute any event which with notice, will not lapse of time or both would result in any breach or violation of or constitute a default under) (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, the charter or bylaws or other organizational instruments of such Selling Stockholder, (ii) any indenture, loan agreement, mortgage, lease deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is its properties may be bound or affected, (iii) violate any federal, state, local or conflict with any applicable law foreign law, regulation or rule, (iv) or any rule, regulation, judgment, order rule or decree regulation of any court self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NASDAQ), or (v) any governmental body decree, judgment or agency having jurisdiction over order applicable to such Selling Stockholder or any property of its properties, except, in the case of clause (ii), for any such breach, violation, default or acceleration that is described in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus or that would not, individually or in the aggregate, have a Material Adverse Effect.
(d) 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, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NASDAQ), is required in connection with the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement or the consummation by such Selling Stockholder of the transactions contemplated hereby or by the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party other than (i) registration of the Shares under the Act, which has been effected or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance herewith, (ii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or (iii) under the rules and regulations of the NASD, all of which have been obtained;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or which has constituted or 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;
(f) there are no affiliations or associations between any member of the NASD and such Selling Stockholder., except as disclosed in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus; none of the proceeds received by such Selling Stockholder from the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement will be paid to a member of the NASD or any affiliate of (or person “associated with,” as such terms are used in the Rules of the NASD) such member;
(g) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does not, and will not on the 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.
(h) At any time during the period described in Section 5(d), if there now is any change in the information referred to in Section 7(g), such Selling Stockholder will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) hadand, at the time of delivery of such Shares (whether the consummation time of purchase or any additional time of purchase, as the case may be), will be the lawful owner of the distribution number of Common Stock Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery of such Shares, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or any additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(h) such Selling Stockholder has and, at the time of delivery of the Company Shares to stockholders of Pittway Corporation be sold by such Selling Stockholder pursuant to this Agreement (whether the Combination time of purchase or any additional time of purchase, as the case may be), will have full legal right, power and capacity, and all authorizations and approvals required by law (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement and the Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such Selling Stockholder herein;
(i) this Agreement and the custody agreement (the “Custody Agreement”), between Mellon Investor Services LLC, as custodian (the “Custodian”), and such Selling Stockholder and the Power of Attorney to which such Selling Stockholder is a party have each been duly executed and delivered by (or, in the case of this Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.on behalf of) such Selling Stockholder;
(j) Each certificate signed by or such Selling Stockholder has duly and irrevocably authorized the Representative of the Selling Stockholders, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(k) the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement is not prompted by any information concerning the Company or any Subsidiary which is not set forth in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus;
(l) at the time of purchase and each additional time of purchase, all stock transfer or other taxes (other than income taxes), if any, that are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Stockholder to the several Underwriters hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with;
(m) pursuant to the Custody Agreement to which such Selling Stockholder is a party, certificates in negotiable form or book-entry credits for the Shares to be sold by such Selling Stockholder pursuant to this Agreement have been placed in custody for the purpose of making delivery of such Shares in accordance with this Agreement; such Selling Stockholder agrees that (i) such Shares represented by such certificates or book-entry credits are for the benefit of, and coupled with and subject to the interest of, the Custodian, the Representative of the Selling Stockholders, the Underwriters and the Company, (ii) the arrangements made by such Selling Stockholder for custody and for the appointment of the Custodian and the Representative of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability or incapacity of such Selling Stockholder (or, if such Selling Stockholder is not an individual, the liquidation, dissolution, merger or consolidation of such Selling Stockholder) or the occurrence of any other event (each, an “Event”); if an Event occurs before the delivery of the Shares hereunder, certificates or book-entry credits for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of the Power of Attorney to which such Selling Stockholder is a party, the Custody Agreement to which such Selling Stockholder is a party and this Agreement, and actions taken by the Custodian and the Representative of the Selling Stockholders pursuant to such Power or Attorney or such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Custodian or the Representative of the Selling Stockholders, or either of them, shall have received notice thereof; and In addition, any certificate signed by any Selling Stockholder (or, with respect to any Selling Stockholder that is not an individual, any officer of such Selling Stockholder or of any of such Selling Stockholder’s subsidiaries) or by the Representative of the Selling Stockholders and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters Stockholder, as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III heretoeach Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to to, and agrees with, each Underwriter of the Underwriters and the Company that:
(a) Such Selling Stockholder is all consents, approvals, authorizations and orders necessary for the lawful owner of the Shares to be sold execution and delivery by such Selling Stockholder pursuant to of this Agreement, the Power-of-Attorney (as defined below) and the Custody Agreement and has(as defined below), and on for the Closing Date or the Option Closing Date, as applicable, will have, good and clear title to consummation by such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Stockholder hasof the transactions contemplated by this Agreement, the Power-of-Attorney and on the Closing Date or the Option Closing Date, as applicable, will have, Custody Agreement have been obtained; and such Selling Stockholder has full legal right, power power, capacity and authority, and all authorization and approval required by law, authority to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, Power-of-Attorney and the Custody Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.hereunder;
(cb) This this Agreement, the Power-of-Attorney and the Custody Agreement has have each been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Stockholder and this Agreement, the Power-of-Attorney and the Custody Agreement of such Selling Stockholder has been duly authorizedeach constitute legal, executed and delivered by such Selling Stockholder and is a valid and binding agreement agreements of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to ;
(c) the power sale of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of hereunder and payment for the Shares to be sold compliance by such Selling Stockholder pursuant to with all of the provisions of this Agreement, good the Power-of-Attorney and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(f) The execution, delivery and performance of this Custody Agreement and the Power of Attorney and Custody Agreement of consummation by such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions contemplated hereby and thereby, as applicable, thereby will not conflict with, or result in any breach of or constitute a default under (i) require nor constitute any consentevent which with notice, approvallapse of time, authorization or other order both would result in any breach of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various statesconstitute a default under), (ii1) conflict with its charter, by-laws or constitute a breach other organizational documents, (2) any indenture, mortgage, deed of any trust, bank loan or credit agreement or other evidence of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individualindebtedness, or any indenturelicense, loan agreementlease, mortgage, lease contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is Stockholder's properties may be bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over affected and which is material to such Selling Stockholder or the transactions contemplated by this Agreement or (3) under any property of federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to such Selling Stockholder.; and such sale can not be matched with a corresponding purchase prior to the time of purchase or the additional time of purchase, as the case may be, for purposes of, and as determined pursuant to, Section 16(b) of the Exchange Act;
(d) such Selling Stockholder now is and at the time of delivery of such Shares (whether the time of purchase or the additional time of purchase, as the case may be) will be, the beneficial owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(e) such Selling Stockholder has the authority to and has executed and delivered a lock-up agreement in the form attached hereto as Exhibit B;
(f) such Selling Stockholder has not taken, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) The in respect of any statements in or omissions from the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein (it being understood and agreed that the only such information furnished to the Company by any Selling Stockholder consists of the information described in Section 11(b) of this Agreement) ("Selling Stockholder Information"), (i) the Registration Statement under did not when it became effective, does not and will not, at the caption "Principal time of purchase and Selling Stockholders" which specifically relates to such any additional time of purchase, contain an untrue statement of a material fact concerning Selling Stockholder does Information or omit to state a material fact concerning Selling Stockholder Information required to be stated therein or necessary to make the statements therein not misleading, (ii) the last Preliminary Prospectus distributed in connection with the offering of the Shares did not, as of its date, and does not contain an untrue statement of a material fact concerning Selling Stockholder Information or omit to state a material fact concerning Selling Stockholder Information 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 (iii) the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, contain an untrue statement of a material fact concerning Selling Stockholder Information or omit to state a material fact concerning Selling Stockholder Information 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;
(h) with respect to each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and the Teece Family Millennium Trust only, (i) the Registration Statement did not when it became effective, does not and will not on not, at the Closing Datetime of purchase and any additional time of purchase, contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the last Preliminary Prospectus distributed in connection with the offering of the Shares did not, as of its date, and 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, in the light of the circumstances under which they were made, not misleading., and (iii) the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that such Selling Stockholder makes no warranty or representation with respect to any statement contained in any Preliminary Prospectus, the Registration Statement or the Prospectus made in reliance upon and in conformity with information concerning an Underwriter or the activities to be undertaken by the Underwriters, or any other Selling Stockholder, and furnished in writing by or on behalf of such Underwriter through UBS, or by or on behalf of such other Selling Stockholder, as the case may be, to the Company expressly for use in any such Preliminary Prospectus, the Registration Statement or the Prospectus (it being understood and agreed that the only such information furnished to the Company by UBS or any Selling Stockholder consists of the information described in Sections 11(a) or (b), as applicable, of this Agreement);
(hi) At such Selling Stockholder will advise UBS promptly, and if requested by UBS, will confirm such advice in writing, so long as delivery of a prospectus relating to the Shares by an underwriter or dealer may be required under the Act, of any time during change in information of the period type described in Section 5(d), if there is any change 11(b) of this Agreement contained in the information referred Registration Statement or the Prospectus, or any amendment or supplement thereto, which relates to such Selling Stockholder;
(j) in Section 7(g)order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect agrees to its decision deliver to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, UBS prior to or at the time of purchase or the consummation additional time of purchase, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof);
(k) certificates in negotiable form, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, representing all of the distribution of Common Stock Shares to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to UBS (the "Custody Agreement"), duly executed and delivered by such Selling Stockholder to LaSalle Bank N.A., as custodian (the "Custodian"), and such Selling Stockholder has duly executed and delivered a power-of-attorney, in the form heretofore furnished to UBS (the "Power-of-Attorney"), appointing ▇▇▇▇▇ ▇▇▇▇▇▇▇ Equity Partners, Inc. and TC Partners VII, L.P. as such Selling Stockholder's attorneys-in-fact (collectively, the "Attorneys-in-Fact") with authority, either acting alone or jointly, to execute and deliver this Agreement and any other documents necessary or desirable in connection with the sale of the Company Shares to stockholders be sold hereunder on behalf of Pittway Corporation pursuant such Selling Stockholder, to determine the purchase price to be paid by the Underwriters to such Selling Stockholder as provided in Section 1 hereof, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder, to receive the proceeds of the sale of such Shares, to give receipts for such proceeds, to pay therefrom the expenses to be borne by such Selling Stockholder in connection with the sale and public offering of the Shares by the Selling Stockholders, to distribute the balance of such proceeds to such Selling Stockholder in proportion to the Combination number of Shares sold by such Selling Stockholder, to receive notice on behalf of such Selling Stockholder and to take such other action as may be necessary or desirable in connection with the transactions contemplated by this Agreement, no plan the Custody Agreement and the Power-of-Attorney; and
(l) the Shares represented by the certificates held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriters hereunder; the arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power-of-Attorney, are to that extent irrevocable; the obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death or intention to sell incapacity of such Selling Stockholder or, in the case of an estate or otherwise dispose trust, by the death or incapacity of any shares executor or trustee or the termination of Common Stock such estate or trust, or in the case of a partnership, corporation or other entity, by the dissolution or liquidation of such partnership, corporation or other entity, or by the occurrence of any other event; if any individual Selling Stockholder 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, corporation or other equity security entity should be dissolved or liquidated, or if any other such event should occur, before the delivery of the Company.
(j) Each certificate signed Shares hereunder, certificates representing the Shares to be sold by such Selling Stockholder shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement and the Custody Agreement, and actions taken by the Custodian pursuant to the Custody Agreement or the Attorneys-in-Fact, either acting alone or jointly, pursuant to the Power-of-Attorney shall be as valid as if such death, incapacity, termination, dissolution, liquidation or other event had not occurred, regardless of whether or not the Custodian or the Attorneys-in-Fact, or either of them acting alone, shall have received notice of such death, incapacity, termination, dissolution, liquidation or other event.
(m) the sale of the Selling Stockholder's shares pursuant to this Agreement is not prompted by any information concerning the Company that is not set forth in the Prospectus. In addition, any certificate signed by any Selling Stockholder or on behalf of any Selling Stockholder by the Attorneys-in-Fact, or either of them acting alone, or otherwise and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters Stockholder, as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III heretoeach Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Lecg Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder represents and warrants to warrants, for such Selling Stockholder only and not for any other Selling Stockholder, to, and agrees with, each Underwriter thatof the Underwriters as of the date hereof, and as of the First Closing Date as follows:
(a) Such Selling Stockholder is has full right, power and authority to enter into this Agreement, the lawful owner Power of Attorney (the "Power of Attorney") and the Custody Agreement (the "Custody Agreement") hereinafter referred to and at the date hereof such Selling Stockholder has, and at the time of delivery of the Selling Stockholder Shares to the Underwriters hereunder such Selling Stockholder will have, full right, power and authority to sell and deliver the Selling Stockholder Shares to be sold by such Selling Stockholder pursuant to this Agreement the Underwriters, and at the date hereof such Selling Stockholder is, and at the time of delivery of Selling Stockholder Shares to the Underwriters such Selling Stockholder will be, the record and beneficial owner of and has, and will have, marketable title to such shares free and clear of any claims, liens, encumbrances or security interests and has duly endorsed such Selling Stockholder Shares in blank, and, assuming that each Underwriter acquires its interest in the Selling Stockholder Shares it has purchased from such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New Jersey Uniform Commercial Code ("UCC")), each Underwriter that has purchased such Selling Stockholder Shares delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Selling Stockholder Shares credited to the Option Closing Date, as applicable, securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have, good and clear title have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Selling Stockholder Shares purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Selling Stockholder Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into The performance of this Agreement and, with respect to the Firm Selling StockholdersAgreement, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder 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, equities and claims whatsoever.
(f) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions contemplated hereby herein and thereby, as applicabletherein contemplated, will not (i) require any consent, approval, authorization conflict with or other order result in a breach of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease indenture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound, or any property law, rule, administrative regulation or court decree. This Agreement, the Power of Attorney and the Custody Agreement have been validly authorized, executed and delivered by such Selling Stockholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property and each constitutes the valid and binding agreement of such Selling Stockholder.
(gc) The information With respect to those Selling Shareholders who are not individuals, each such Selling Shareholder has been duly organized and is validly existing as a limited liability company in good standing under the laws of the jurisdiction of its organization, and the performance of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation of the transactions herein and therein contemplated, will not conflict with or result in a breach of each such Selling Stockholder's Certificate of Formation or Limited Liability Company Operating Agreement,
(d) When the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder does notbecomes effective, and at all times subsequent thereto, the Registration Statement and Prospectus and any amendments thereof and supplements thereto will not on the Closing Date, contain any untrue statement of a material fact or omit to state any 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, therein not misleading.
(h) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(g), such Selling Stockholder will immediately notify you of such change.
(ie) Such Selling Stockholder (i) has made an independent investment decision with respect not taken or will not take, directly or indirectly, any action designed to its decision cause or result in, or which has constituted or which might reasonably be expected to offer and sell constitute, the Shares stabilization or manipulation, under the Exchange Act or otherwise, of the price of the Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at to facilitate the time sale or resale of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Companyhereby.
(jf) Certificates in negotiable form representing all of the Selling Stockholder Shares to be sold by such Selling Stockholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you, duly executed and delivered by such Selling Stockholder to the Company, as custodian (the "Custodian"), and such Selling Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you, appointing, _____________ as such Selling Stockholder's attorney-in-fact (the "Attorney-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to authorize the delivery of the Selling Stockholder Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement.
(g) The Selling Stockholder Shares held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and the arrangements made by such Selling Stockholder for such custody, as well as the appointment by such Selling Stockholder of the Attorney-in-Fact, are, to that extent, irrevocable. Each certificate signed Selling Stockholder specifically agrees that the obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder or by the occurrence of any other event. If any individual Selling Stockholder should die or become incapacitated, or if any other such event should occur, before the delivery of the Selling Stockholder Shares hereunder, certificates representing the Selling Stockholder Shares shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement and of the Custody Agreement, and the actions taken by the Attorney-in-Fact pursuant to the Power of Attorney shall be as valid as if such death, incapacity or other event had not occurred, whether or not the Custodian or the Attorney-in-Fact shall have received notice of such death, incapacity or other event. Any certificate signed by a Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters Stockholder, as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III heretoeach Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each ---------------------------------------------------------- Selling Stockholder severally represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date or the (and Option Closing Date, as if applicable, ) will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities interests and claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and, with respect to the Firm Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Firm Selling Stockholder and Edwa▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Mich▇▇▇ ▇▇▇▇▇▇▇, ▇▇ the case may be, as Attorney- In-Fact and Custodian (the "FIRM SELLING STOCKHOLDER ATTORNEY-IN-FACT"), relating to the deposit of the Firm Shares to be sold by such Firm Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "FIRM SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT"), and, with respect to the Additional Selling Stockholders, the Power of Attorney and Custody Agreement signed by such Additional Selling Stockholder and Will▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Attorney-In-Fact and Custodian (the "ADDITIONAL SELLING STOCKHOLDER ATTORNEY-IN-FACT" and, together with the Firm Selling Stockholder Attorney-In- Fact, the "ATTORNEYS-IN-FACT") relating to the deposit of the Additional Shares to be sold by such Additional Selling Stockholder and the transactions contemplated hereby and by the Registration Statement (the "ADDITIONAL SELLING STOCKHOLDER POWER OF ATTORNEY AND CUSTODY AGREEMENT" and, together with the Firm Selling Stockholder Power of Attorney and Custody Agreement, the "POWER OF ATTORNEY AND CUSTODY AGREEMENTS"), and, with respect to each Selling Stockholder, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized its Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Upon delivery of and payment for the such Shares to be sold by such Selling Stockholder 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, equities interests and claims whatsoever.
(c) Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority to enter into this Agreement and the Custody Agreement between the Selling Stockholders and __________________________________, as Custodian (the "Custody Agreement") and to sell, assign, transfer and deliver such Shares in the manner provided herein and therein, and this Agreement and the Custody Agreement have been duly authorized, executed and delivered by such Selling Stockholder and each of this Agreement and the Custody Agreement is a valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by applicable law.
(d) The power of attorney signed by such Selling Stockholder appointing _________________ and ________________, or either one of them, as his attorney-in-fact to the extent set forth therein with regard to the transactions contemplated hereby and by the Registration Statement and the Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder enforceable in accordance with its terms, and, pursuant to such power of attorney, such Selling Stockholder has authorized _________________ and ________________, or either one of them, to execute and deliver on his behalf this Agreement and any other document necessary or desirable in connection with transactions contemplated hereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Act, the Selling Stockholder 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 and the Power of Attorney and Custody Agreement of by such Selling Stockholder, by or on behalf of such Selling Stockholder, the compliance by each such Selling Stockholder with all the provisions hereof and thereof, as applicable, and the consummation of the transactions contemplated hereby and thereby, as applicable, will not (i) require any consent, approval, authorization or other order ofof any court, regulatory body, administrative agency or qualification with, any court or other governmental body or agency (except as such as may be required under the Act, state securities laws or Blue Sky laws of the various states), (iilaws) and will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease indenture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound bound, or (iii) violate or conflict with any laws, administrative regulation or ruling or court decree applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over to such Selling Stockholder or any property of such Selling Stockholder.
(g) The information in Such parts of the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates relate to such Selling Stockholder does do not, and will not on the Closing Date (and any Option Closing Date, if applicable), 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.
(h) At any time during the period described in Section 5(d)paragraph 5(e) hereof, if there is any change in the information referred to in Section paragraph 7(g)) above, such the Selling Stockholder Stockholders will immediately notify you of such change.
(i) Such Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares of Common Stock set forth opposite its name on Schedule II hereto and (ii) had, at the time of the consummation of the distribution of Common Stock of the Company to stockholders of Pittway Corporation pursuant to the Combination Agreement, no plan or intention to sell or otherwise dispose of any shares of Common Stock or any other equity security of the Company.
(j) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
(k) With respect to the Firm Selling Stockholders, such Firm Selling Stockholder agrees to cause each person or entity listed in the table in the section of the preliminary prospectus, dated September 5, 2000, entitled "Principal and Selling Stockholders" that (i) has not executed, on or prior to the date hereof, an agreement to the effect set forth in the last sentence of Section 2 hereof with respect to the shares of Common Stock owned by such person or entity (a "Lock-Up Agreement"), (ii) owns shares of Common Stock as of the date hereof, and (iii) is not selling such shares of Common Stock to the Underwriters as contemplated hereby, to execute and deliver to you, on or prior to the Closing Date, a Lock-Up Agreement. The Firm Selling Stockholders shall have no obligation under this Section 7(k) with respect to any Additional Selling Stockholder or any person listed on Schedule III hereto.
Appears in 1 contract