Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, and agrees with, the Underwriter as of the date hereof and as of the Closing Date that: (a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event. (c) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever. (d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder. (e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter. (f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder. (g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with). (h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement. (i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering. (j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact. (k) 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. (l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Inveresk Research Group Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and constitutes the legall, valid and binding obligation of such Selling Stockholderas Custodian, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject relating to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner deposit of the Shares to be sold by such Selling Stockholder hereunder and(the “Custody Agreement”) and the Power of Attorney 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 (the “Power of Attorney”) will not contravene any provision of applicable law, or any agreement or other instrument binding upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date will convey have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to the Underwriter good and marketable title to be sold by such Shares, Selling Stockholder free and clear of all voting trust arrangementssecurity interests, pledgesclaims, liens, encumbrances, equities, claims equities or other encumbrances and security interests whatsoever.
(d) Such Selling Stockholder has full the legal right and power, and all authorizations authorization and approvals approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver all the Shares to be sold by such Selling Stockholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Stockholder and are valid and binding agreements of such Selling Stockholder.
(e) [Delivery of the Shares which may to be sold by such Selling Stockholder and payment therefor pursuant to this Agreement will pass valid title to such Shares, free and clear of any adverse claim within the meaning of Section 8-102 of the UCC, to each Underwriter who has purchased such Shares without notice of an adverse claim.] [Note: This version of the representation is to be used if Shares are to be delivered by such Selling Stockholder in certificated form endorsed to the Underwriters.]
(f) [Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to comply securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares) (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the executionStockholder may assume that when such payment, delivery and performance 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.] [Note: This version of the representation is to be used if Shares are to be delivered by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder through DTC without ever being registered directly in the name of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the UnderwriterUnderwriters.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.]
(g) Such Selling Stockholder does is not have prompted by any registration or other similar rights to have any equity or debt securities registered for sale by information concerning the Company under the Registration Statement or included in the offering of the Shares, except for such rights as have been waived (its subsidiaries which waiver remains in full force and effect) or which are described is not set forth in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the sell his Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except The Registration Statement, when it became effective, did not contain and, as disclosed in the Prospectusamended or supplemented, there are no contractsif applicable, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does will not contain any untrue statement of a material fact.
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (kii) Such the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(h) are limited to statements or omissions made in reliance upon information relating to 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 furnished to the Company in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(l) Such writing by such Selling Stockholder has not distributed and will not distribute, prior to expressly for use in the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary ProspectusRegistration Statement, the Prospectus or the Registration Statement. Any certificate signed by any amendments or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered therebysupplements thereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally (but only as to itself and not as to any jointly with the other Selling Stockholder) Stockholders, represents and warrants to, to and agrees with, the Underwriter as with each of the Underwriters on the date hereof and as of hereof, on the Closing Date and on each Option Closing Date, if any, that:
(a) Such Each of this Agreement and the Selling Stockholder Stockholders’ Custody Agreement and Power of Attorney has full rightbeen duly authorized, power executed and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions delivered by or on behalf of such Selling Stockholder contemplated by this Agreement. This and, in the case of a Selling Stockholder who will be exercising an option to purchase Common Stock (the “Option”) and selling such Shares to the Underwriters at the First Closing Date, the Selling Stockholder has duly authorized the attorney-in-fact set forth in the Selling Stockholders’ Custody Agreement and Power of Attorney to execute a notice of exercise of such Option and the transactions contemplated by this Agreement have been duly option agreement relating to such Option for the purpose of selling such Shares to the Underwriters and validly authorized receiving payment therefor (a “Notice of Exercise”) and such authorization is in full force and effect.
(b) Neither the execution and delivery by such Selling Stockholder. This Stockholder of, nor the performance by such Selling Stockholder of its obligations under, this Agreement has been duly or the Custody Agreement and validly executed and delivered Power of Attorney signed by such Selling Stockholder and constitutes the legalLaSalle Bank National Association, valid and binding obligation of such Selling Stockholderas Custodian, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject relating to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner deposit of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such (the “Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Stockholders’ Custody Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(ePower of Attorney”) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules Notice of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
Exercise (fif applicable) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, contravene, result in a breach or violation of, or constitute a default (or an event that 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 to, or constitute a default under (i) any statute, law, statuterule, rule regulation, judgment, order or regulation or the terms decree of any indenture governmental body, regulatory or administrative agency or court having jurisdiction over such Selling Stockholder; (ii) the certificate of incorporation or bylaws (or other agreement organizational documents) of such Selling Stockholder, if applicable, or (iii) any contract, agreement, obligation, covenant or instrument to which such Selling Stockholder (or any of its assets) is party subject or bound; and no consent, approval, authorization or order of, or to which qualification with, any of governmental body or agency is required for the property or assets of performance by such Selling Stockholder is subject, of its obligations under this Agreement or (B) result in any violation the Selling Stockholders’ Custody Agreement and Power of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, Attorney of such Selling Stockholder, except such as may be required by the securities or blue sky laws of the various jurisdictions in connection with the offer and sale of the Shares.
(c) Except with respect to any judgment, order, decree statute, rule or regulation applicable Options to be exercised by the Selling Stockholders as set forth in the Time of Sale Prospectus with respect to the sale of Shares by such Selling Stockholder pursuant to this Agreement, such Selling Stockholder now is the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement, and has valid marketable title to, or a valid “security entitlement” (within the meaning of Section 8-501 of the Illinois Uniform Commercial Code (the “UCC”)) in respect of, the number of Shares to be sold by such Selling Stockholder, free and clear of all security interests, claims, liens, equities or other encumbrances, other than any court created by the Selling Stockholders’ Custody Agreement and Power of Attorney, and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Selling Stockholders’ Custody Agreement and Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder or a security entitlement in respect of such Shares. Such Selling Stockholder, on the Closing Date will be the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement, and on the Closing Date will have, valid marketable title to, or a valid “security entitlement” (within the meaning of Section 8-501 of the UCC) in respect of, the number of Shares to be sold by such Selling Stockholder, free and clear of all security interests, claims, liens, equities or other encumbrances, other than any publiccreated by the Selling Stockholders’ Custody Agreement and Power of Attorney and to sell, governmental transfer and deliver the Shares to be sold by such Selling Stockholder or regulatory agency a security entitlement in respect of such Shares. With respect to any Options to be exercised by the Selling Stockholders as set forth in the Time of Sale Prospectus with respect to the sale of Shares by such Selling Stockholder pursuant to this Agreement, such Selling Stockholder now is the lawful owner of such options to purchase the number of Shares to be sold by such Selling Stockholder, free and clear of all security interests, claims, liens, equities or bodyother encumbrances, administrative agency or arbitrator having jurisdiction over other than any created by the Selling Stockholders’ Custody Agreement and Power of Attorney and has the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Selling Stockholders’ Custody Agreement and Power of Attorney and to exercise the Options as contemplated by this Agreement.
(d) The Selling Stockholders’ Custody Agreement and Power of Attorney has been duly authorized, executed and delivered by such Selling Stockholder and is the valid and binding agreements of such Selling Stockholder.
(e) 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 Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC to such Shares), (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 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 each of the Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) 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 Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the then most recent Preliminary Prospectus.
(g) Such If such Selling Stockholder is a beneficial owner of 5% or more of the outstanding Common Stock or of any unregistered equity securities of the Company that were acquired at any time on or after the 180th day immediately preceding the date the Prospectus Supplement was initially filed with the Commission, such Selling Stockholder does not have any registration association 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 affiliation with a member of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with)NASD.
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) Such Selling Stockholder has not taken and will not takenot, directly or indirectly, taken any action designed toto cause or result, or that which will constitute, or has constituted, or might reasonably be reasonably expected to, to cause or result result, in the stabilization or manipulation of the price of any security of the Common Stock Company to facilitate the sale or resale of the Shares.
(li) Such Selling Stockholder has is not distributed prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(j) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder; (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not distributecontain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Registration Statement, as of the date hereof, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; iv) at no time during the period that begins on the earlier of the date of the Preliminary Prospectus and the date on which the Preliminary Prospectus was filed with the Commission and ends immediately prior to the later execution of this Agreement did any Preliminary Prospectus contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (v) the Time of Sale Prospectus does not, and at the Time of Sale, the Closing Date (as defined in Section 5) and, if applicable, each Option Closing Date (as defined in Section 3), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vi) each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Time of Sale Prospectus or Prospectus; (vii) each road show not constituting a free writing prospectus, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (viii) the Prospectus, as of the date it is filed with the Commission pursuant to Rule 424, at the Closing Date and at each Option Date, does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the completion statements therein, in the light of the Underwriter’s distribution circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this Section 2(j) are limited to statements or omissions in the Registration Statement, the Time of the SharesSale Prospectus, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, any Permitted Free Writing Prospectus, any road show or the Prospectus or the Registration Statement. Any certificate signed by any amendments or on behalf of a supplements thereto based upon information relating to such Selling Stockholder and delivered furnished to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty Company in writing by such Selling Stockholder to the Underwriter as to the matters covered therebyexpressly for use therein.
Appears in 1 contract
Sources: Underwriting Agreement (LKQ Corp)
Representations and Warranties of the Selling Stockholders. (a) Each of the Selling Stockholder Stockholders, severally (but only as to itself and not as to any other Selling Stockholder) jointly, represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(ii) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and BankBoston Equiserve, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder (the "Custody Agreement") and the Power of Attorney signed by such Selling Stockholder, appointing __________________ as such Selling Stockholder's attorney-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of such Selling Stockholder (if such Selling Stockholder is a corporation), or any agreement or other instrument material to and binding upon such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may be required under the Securities Act or by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(iii) Such Selling Stockholder has full righthas, power and authority on the Closing Date will have, valid title to execute the Shares to be sold by such Selling Stockholder and deliver the legal right and power, and all authorization and approval required by law, to enter into this Agreement, to perform its obligations hereunder the Custody Agreement and the Power of Attorney and to consummate sell, transfer and deliver the transactions of Shares to be sold by such Selling Stockholder.
(iv) The Shares to be sold by such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by pursuant to this Agreement have been duly authorized and are validly authorized by such Selling Stockholder. This issued, fully paid and non-assessable.
(v) The Custody Agreement has and the Power of Attorney have been duly and validly authorized, executed and delivered by such Selling Stockholder and constitutes the legal, are valid and binding obligation agreements of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ ' rights generally and except as enforceability may be subject to by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)equity.
(bvi) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner Delivery of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder pursuant to this Agreement will convey to the Underwriter good and marketable pass title to such Shares, Shares free and clear of all voting trust arrangementsany security interests, pledgesclaims, liens, equities and other encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(jvii) All information furnished in writing by or on behalf of such Selling Stockholder in writing for use in the Registration Statement is, and on the Prospectus is Closing Date will be, true, correct and complete in all material respects complete, and does not not, and on the Closing Date will not, contain any untrue statement of a material fact.
(k) Such Selling Stockholder has fact or omit to state any material fact necessary to make such information not taken misleading, and will not take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result all information furnished in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed writing by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder for use in the Prospectus is, and on the Closing Date will be, true, correct and complete, and does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading in the light of the circumstances under which they were made.
(b) Each of the Affiliated Selling Stockholders, severally and not jointly, hereby represents and warrants that such Affiliated Selling Stockholder has reviewed the Registration Statement and Prospectus and, although such Affiliated Selling Stockholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the Underwriter as attention of such Affiliated Selling Stockholder that would lead such Affiliated Selling Stockholder to believe that (1) the matters covered therebyRegistration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; or (2) the Prospectus contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally (but only as to itself and not as to any other Selling Stockholder) jointly, represents and warrants to, and agrees with, the to each Underwriter as of the date hereof and as of the Closing Date that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder and, upon sale pursuant to this Agreement and delivery ofhas, and payment foron the Closing Date will have, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable clear title to such Shares, free and clear of all voting trust arrangements, pledgesrestrictions on transfer, liens, encumbrances, equitiessecurity interests, equities and claims and security interests whatsoeverwhatsoever (other than restrictions on transfer imposed by applicable law).
(db) Such Selling Stockholder has has, and on the Closing Date will have, full legal right right, power and power, and all authorizations and approvals required by law, authority to enter into this Agreement, and to sell, assign, transfer and deliver all of the Shares which may 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) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement and Agreement, assuming that the Underwriters shall have purchased the Shares to comply with be sold by such Selling Stockholder’s other obligations hereunderStockholder for value in good faith and without any adverse claim, 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.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and the consummation of the 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 various states), (ii) conflict with or constitute a breach of any of the other transactions terms or provisions of, or a default under, the organizational documents of such Selling Stockholder contemplated herein by Stockholder, if such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will is not (A) conflict with, result in a breach or violation ofan individual, or constitute a default (or an event that with notice or lapse of timeany indenture, or bothloan agreement, would constitute a default) undermortgage, 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 law, statute, rule or regulation or the terms of any indenture lease or other agreement or instrument that is material to such Selling Stockholder and to which such Selling Stockholder is a party or bound, by which such Selling Stockholder or to which any of the property or assets of such Selling Stockholder is subject, bound or (Biii) result in violate or conflict with any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, applicable law or any rule, regulation, judgment, order, order or decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental body or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(gf) Such The information in the Registration Statement under the caption "Principal Stockholders" and "Selling Stockholders" which specifically relates to such Selling Stockholder does not, and will not have on the Closing Date, contain any registration untrue statement of a material fact or other similar rights omit to have state any equity material fact required to be stated therein or debt securities registered for sale by necessary to make the Company under the Registration Statement or included statements therein, in the offering light of the Sharescircumstances under which they were made, except for such rights as have been waived not misleading.
(which waiver remains in full force and effectg) or which are At any time during the period described in Section 5(d), if there is any change in the Prospectus (and which have been complied withinformation referred to in Section 7(h), such Selling Stockholder will immediately notify you of such change.
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished Each certificate signed by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) 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.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter Underwriters or to counsel for the Underwriter Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter Underwriters as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (International Home Foods Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but represents and warrants, for such Selling Stockholder only as to itself and not as to for any other Selling Stockholder) represents and warrants , to, and agrees with, each of the Underwriter Underwriters as of the date hereof hereof, and as of the First Closing Date thatas follows:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver enter into this Agreement, to perform its obligations hereunder the Power of Attorney (the “Power of Attorney”) and to consummate the transactions of Custody Agreement (the “Custody Agreement”) hereinafter referred to, and at the date hereof, such Selling Stockholder contemplated 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 to 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 upon delivery of such shares and payment therefor pursuant thereto, 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, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the Underwriter purchasing such Selling Stockholder Shares.
(b) 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, or default under, any agreement, indenture or other instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound, or any law, rule, administrative regulation or court decree. This Agreement Agreement, the Power of Attorney and the transactions contemplated by this Custody Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by such Selling Stockholder and each constitutes the legal, valid and binding obligation agreement of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is When the lawful owner Registration Statement becomes effective, and at all times subsequent thereto, the Registration Statement and Prospectus and any amendments thereof and supplements thereto will not contain any untrue statement of the Shares a material fact relating to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, or omit to state a material fact relating to such Selling Stockholder will convey required to be stated therein or necessary in order to make the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoeverstatements therein not misleading.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) Such Selling Stockholder has not taken and or will not take, directly or indirectly, any action designed to, or that might be reasonably expected to, to cause or result in in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation manipulation, under the Exchange Act or otherwise, of the price of the Common Stock to facilitate the sale or resale of the SharesCommon Stock hereby.
(le) Such 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 not distributed duly executed and will not distributedelivered a Power of Attorney, prior in the form heretofore furnished to you, appointing [___ and ___] as such Selling Stockholder’s attorney-in-fact (the later “Attorney-in-Fact”) with authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to authorize the delivery of the Closing Date Selling Stockholder Shares to be sold by such Selling Stockholder hereunder and the completion otherwise to act on behalf of the Underwriter’s distribution of the Shares, any offering material such Selling Stockholder in connection with the offering transactions contemplated by this Agreement and sale the Custody Agreement.
(f) The Selling Stockholder Shares held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Shares 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 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 than event. If any Preliminary Prospectusindividual Selling Stockholder should die or become incapacitated, or if any other such event should occur, before the Prospectus 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 Registration StatementAttorney-in-Fact shall have received notice of such death, incapacity or other event. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter Underwriters or to counsel for the Underwriter Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter Stockholder, as to the matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) Stockholders hereby represents and warrants to, and agrees with, the to each Underwriter as of the date hereof and as of the Closing Date thatfollows:
(a) Such The Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate caused the transactions number of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder to be delivered to Mellon Investor Services, LLC (the "Custodian"), such shares to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated ____________ among the Custodian and the Selling Stockholders (the "Custody Agreement").
(b) The Selling Stockholder has granted an irrevocable power of attorney (the "Power of Attorney") to the person named therein, on behalf of the 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 the Selling Stockholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and, upon sale assuming due authorization, execution and delivery ofby the other parties hereto, constitutes the valid and payment forlegally binding agreement of the Selling Stockholder, such Shares as provided herein, such enforceable against the Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoeverin accordance with its terms.
(d) Such The execution and delivery by the Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such the performance by the Selling Stockholder of its obligations under this Agreement (i) will not contravene any provision of applicable law, statute, regulation or filing or any agreement or other instrument binding upon the Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Stockholder’s other obligations hereunder.
, (eii) No Consent ofdoes not require any consent, from approval, authorization or order of or registration or filing with any judicial, regulatory or other legal court or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated hereinhaving jurisdiction over it, except such as have been obtained under the Securities Act and such as may be required under by the state securities laws, the blue sky Blue Sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. various states in connection with the purchase offer and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any sale of the other transactions of such Selling Stockholder contemplated herein by such Shares which have been or will be effected in accordance with this Agreement, (iii) does not and will not violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder (iv) will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 the Selling Stockholder pursuant to any law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such the Selling Stockholder is a party or bound, by which the Selling Stockholder may be bound or to which any of the property or assets of such the Selling Stockholder is subject.
(e) The Selling Stockholder has, or (B) result in any violation of and on each Closing Date will have, valid and marketable title to the provisions Shares to be sold by the Selling Stockholder free and clear of any charter or bylaws or certificate of formationlien, trust agreementclaim, partnership agreement, articles of partnership security interest or other organizational documentsencumbrance, including, without limitation, any restriction on transfer, except as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such otherwise described in the Registration Statement and Prospectus.
(f) The Selling Stockholder of has, and on each Closing Date will have, full legal right, power and authorization, and any court or any publicapproval required by law, governmental or regulatory agency or bodyto sell, administrative agency or arbitrator having jurisdiction over such assign, transfer and deliver the Shares to be sold by the Selling StockholderStockholder in the manner provided by this Agreement.
(g) Such Upon delivery of and payment for the Shares to be sold by the Selling Stockholder does not have pursuant to this Agreement, the several Underwriters will receive valid and marketable title to such Shares free and clear of any registration lien, claim, security interest or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with)encumbrance.
(h) Such All information relating to the Selling Stockholder does not have, or has waived prior to furnished in writing by the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing expressly for use in the Registration Statement and the Prospectus is is, and on each Closing Date will be, true, correct correct, and complete in all material respects complete, and does not not, and on each Closing Date will not, contain any untrue statement of a material factfact or omit to state any material fact necessary to make such information not misleading.
(i) The Selling Stockholder has reviewed the Registration Statement and Prospectus and, although the Selling Stockholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Stockholder that would lead the Selling Stockholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, misleading.
(j) The sale of Shares by the Selling Stockholder pursuant to this Agreement is not prompted by the Selling Stockholder's knowledge of any material information concerning the Company which is not set forth in the Prospectus.
(k) Such The Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to, to or that might reasonably be reasonably expected to, to cause or result in stabilization or manipulation of the price of any security of the Common Stock Company to facilitate the sale or resale of the Shares.
(l) Such The Selling Stockholder has not distributed and will not distribute, prior to the later no actual knowledge that any representation or warranty of the Company set forth in Section 4 above is untrue or inaccurate in any material respect.
(m) The representations and warranties of the Selling Stockholder in the Custody Agreement are and on each Closing Date will be, true and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered therebycorrect.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally (but only as to itself and not as to any other Selling Stockholder) jointly, represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and constitutes the legalAmerican Stock Transfer & Trust Company, valid and binding obligation of such Selling StockholderLLC, enforceable in accordance with its termsas Custodian, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject relating to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner deposit of the Shares to be sold by such Selling Stockholder hereunder and(the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Selling Stockholder’s attorneys-in-fact to the extent set forth therein, upon sale relating to the transactions contemplated hereby and delivery ofby the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, and payment for, such Shares as provided herein, or the certificate of incorporation or by-laws of such Selling Stockholder (if such Selling Stockholder is a corporation), or any agreement or other instrument binding upon such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date will convey have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to the Underwriter good and marketable title to be sold by such Shares, Selling Stockholder free and clear of all voting trust arrangementssecurity interests, pledgesclaims, liens, encumbrances, equities, claims equities or other encumbrances and security interests whatsoever.
(d) Such Selling Stockholder has full the legal right and power, and all authorizations authorization and approvals approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver all of the Shares which may to be sold by such Selling Stockholder pursuant to this Agreement and to comply with or a security entitlement in respect of such Selling Stockholder’s other obligations hereunderShares.
(ed) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for The Custody Agreement and the execution, delivery and performance by such Selling Stockholder Power of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as Attorney have been obtained under the Securities Act duly authorized, executed and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement delivered by such Selling Stockholder and consummation are valid and binding agreements of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(ge) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling 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.
(f) Such Selling Stockholder does is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not have any registration disclosed in the Time of Sale Prospectus or other similar rights the Prospectus that has had, or could reasonably be expected to have any equity or debt securities registered for sale by have, a material adverse effect on the Company under the Registration Statement or included in the offering of the Sharesand its subsidiaries, except for such rights taken as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) a whole. Such Selling Stockholder does is not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold prompted by any other Selling Stockholder information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to the Underwriter sell its Shares pursuant to this Agreement.
(g) (i) Except the Registration Statement, when it became effective, did not contain and, as disclosed in amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Prospectusstatements therein not misleading, there are no contracts(ii) the Time of Sale Prospectus does not, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against at the Company or time of each sale of the Underwriter for a brokerage commission, finder’s fee or other like payment Shares in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and offering when the Prospectus is truenot yet available to prospective purchasers and at the Closing Date (as defined in Section 5), correct and complete the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in all material respects and the light of the circumstances under which they were made, not misleading, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact.
fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (kiv) Such the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited to statements or omissions made in reliance upon information relating to 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 furnished to the Company in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(l) Such writing by such Selling Stockholder has not distributed and will not distributeexpressly for use in the Registration Statement, prior to the later Time of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Sale Prospectus, the Prospectus or the Registration Statement. Any certificate signed by any amendments or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered therebysupplements thereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each ---------------------------------------------------------- Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, and agrees with, the Underwriter as of the date hereof and as of the Closing Date to each Manager that:
(a) Such Selling Stockholder has full rightnow has, power and authority on the Closing Date and any Option Closing Date will have, valid and marketable title to execute and deliver this Agreement, the Shares to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized be sold by such Selling Stockholder. This Agreement has been duly , free and validly executed clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer other than pursuant to this Agreement, the U.S. Underwriting Agreement, the Power of Attorney and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)Custody Agreement.
(b) Such Selling Stockholder agrees that now has, and on the Closing Date and any Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign, transfer and deliver such Shares to be sold by such Selling Stockholder are subject to in the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as manner provided in this Agreement and the U.S. Underwriting Agreement, by any act and upon delivery of and payment for such Selling StockholderShares hereunder, by operation of law or by the occurrence several Managers will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest, or other eventencumbrance.
(c) Such Selling Stockholder is This Agreement, the lawful owner U.S. Underwriting Agreement and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, are the valid and payment for, such Shares as provided herein, binding agreements of such Selling Stockholder will convey to the Underwriter good and marketable title to enforceable against such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoeverSelling Stockholder in accordance with their terms.
(d) Such Selling Stockholder has full legal right Neither the execution and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, the U.S. Underwriting Agreement or consummation the Custody Agreement by such Selling Stockholder of the transactions or on behalf of such Selling Stockholder nor the consummation of the transactions herein or therein contemplated hereinby or on behalf of such Selling Stockholder requires any consent, approval, authorization or order of, or filing or registration with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as have been obtained under the Securities Act and such as may be required under the Act and the Exchange Act or such as may be required under state securities laws, the blue sky or Blue Sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with governing the purchase and distribution of the Shares) or conflicts or will conflict with or constitutes or will constitute a breach of, or default under, or violates or will violate, any agreement, indenture, lease or other 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 such Selling Stockholder’s Shares by the Underwriter.
(f) The execution's property or assets is subject, delivery and performance of this Agreement by such Selling Stockholder and consummation of or any of the other transactions of such Selling Stockholder contemplated herein by statute, law, rule, regulation, ruling, judgment, injunction, order or decree applicable to such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 to any property or assets of such Selling Stockholder pursuant Stockholder.
(e) The Registration Statement and the Prospectuses, insofar as they relate to any law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, do not and will not contain an untrue statement of a material fact or omit to state any judgment, order, decree statute, rule material fact required to be stated therein or regulation applicable necessary to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholdermake the statements therein not misleading.
(gf) Such Selling Stockholder does not have any registration knowledge or other similar rights any reason to have any equity or debt securities registered for sale by the Company under believe that the Registration Statement or included the Prospectuses (or any amendment or supplement thereto) contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) The representations and warranties of such Selling Stockholder in the offering of Custody Agreement are, and on the SharesClosing Date and any Option Closing Date will be, except for such rights as have been waived (which waiver remains in full force true and effect) or which are described in the Prospectus (and which have been complied with)correct.
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) Such Selling Stockholder has not taken taken, and will not take, directly or indirectly, any action designed to, to or that might reasonably be reasonably expected to, to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel except for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to lock-up arrangements described in the Underwriter as to the matters covered therebyProspectuses.
Appears in 1 contract
Sources: International Underwriting Agreement (Nova Corp \Ga\)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, and agrees with, the to each U.S. Underwriter as of the date hereof and as of the Closing Date that:
(a) Such Selling Stockholder has full rightnow has, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate on the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement Closing Date and the transactions contemplated by this Agreement have been duly Option Closing Date will have, valid and validly authorized marketable title to the Shares to be sold by such Selling Stockholder. This Agreement has been duly , free and validly executed and delivered by such Selling Stockholder and constitutes the legalclear of any lien, valid and binding obligation of such Selling Stockholderclaim, enforceable in accordance with its termssecurity interest or other encumbrance, except as enforceability may be limited by applicable bankruptcyincluding, insolvencywithout limitation, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)any restriction on transfer.
(b) Such Selling Stockholder agrees that now has, and on the Closing Date and the Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign, transfer and deliver such Shares to be sold by such Selling Stockholder are subject to in the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as manner provided in this Agreement, by any act and upon delivery of and payment for such Selling StockholderShares hereunder, by operation of law or by the occurrence several U.S. Underwriters will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest or other eventencumbrance.
(c) Such Selling Stockholder is This Agreement and the lawful owner Custody Agreement have been duly authorized, executed and delivered by or on behalf of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, are the valid and payment for, such Shares as provided herein, binding agreements of such Selling Stockholder will convey to the Underwriter good and marketable title to enforceable against such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoeverSelling Stockholder in accordance with their respective terms.
(d) Such Selling Stockholder has full legal right Neither the execution and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all delivery of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory the Custody Agreement by or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions on behalf of such Selling Stockholder nor the consummation of the transactions herein or therein contemplated hereinby or on behalf of such Selling Stockholder requires any consent, approval, authorization or order of, or filing or registration with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as have been obtained under the Securities Act and such as may be required under the Act or such as may be required under state securities laws, the blue sky or Blue Sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with governing the purchase and distribution of the Shares) or conflicts or will conflict with or constitutes or will constitute a breach of, or default under, or violates or will violate, any agreement, indenture or other instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is or may be bound or to which any of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution's property or assets is subject, delivery and performance of this Agreement by such Selling Stockholder and consummation of or any of the other transactions of such Selling Stockholder contemplated herein by statute, law, rule, regulation, ruling, judgment, injunction, order or decree applicable to such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 to any property or assets of such Selling Stockholder pursuant Stockholder.
(e) The Registration Statement and the Prospectuses, insofar as they relate to any law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, do not and will not contain an untrue statement of a material fact or omit to state any judgment, order, decree statute, rule material fact required to be stated therein or regulation applicable necessary to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholdermake the statements therein not misleading.
(gf) Such Selling Stockholder does not have any registration knowledge or other similar rights any reason to have any equity or debt securities registered for sale by the Company under believe that the Registration Statement or included the Prospectuses (or any amendment or supplement thereto) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) The representations and warranties of such Selling Stockholder in the offering of Custody Agreement are, and on the SharesClosing Date and the Option Closing Date will be, except for such rights as have been waived (which waiver remains in full force true and effect) or which are described in the Prospectus (and which have been complied with)correct.
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) Such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action designed to, to or that might reasonably be reasonably expected to, to cause or result in stabilization or manipulation of the price of the Common any Capital Stock to facilitate the sale or resale of the Shares.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel except for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to lock-up arrangements described in the Underwriter as to the matters covered therebyProspectuses.
Appears in 1 contract
Sources: u.s. Underwriting Agreement (Paxson Communications Corp)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) Stockholders represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly executed and validly delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder will not contravene (i) any provision of applicable law, (ii) any agreement or other instrument binding upon such Selling Stockholder, or (iii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Power of Attorney and Custody Agreement of such Selling Stockholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date (defined below) will have, valid title to the Shares to be sold by such Selling Stockholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder.
(d) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly executed and delivered by such Selling Stockholder and constitutes the legal, is a valid and binding obligation agreement of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws affecting creditors’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)equity.
(be) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner Delivery of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder pursuant to this Agreement will convey to the Underwriter good and marketable pass title to such Shares, Shares free and clear of all voting trust arrangementsany security interests, pledgesclaims, liens, equities and other encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except The Registration Statement, when it became effective, did not contain and, as disclosed in the Prospectusamended or supplemented, there are no contractsif applicable, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does will not contain any untrue statement of a material fact.
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (kii) Such to the knowledge of the respective Selling Stockholder, the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood and agreed that the representations and warranties set forth in this paragraph 2(f) apply only to statements in or omissions from the Registration Statement or the Prospectus based upon information relating to any 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.
(l) Such Selling Stockholder has not distributed and will not distribute, prior furnished to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material Company in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty writing by such Selling Stockholder expressly for use therein. In addition to the Underwriter as foregoing provisions of this Section 2, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ represents and warrants to and agrees with each of the Underwriters that Schedule I to the matters covered therebyopinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, acting as counsel to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, dated the Closing Date, will, on such date be a true and complete list of all material agreements or other instrument binding upon ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
Appears in 1 contract
Sources: Underwriting Agreement (Viatel Inc)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, and agrees with, the Underwriter as each of the date hereof Underwriters and as of the Closing Date Company that:
(a) Such all consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder of this Agreement and the Power of Attorney (the "Power of Attorney") and the Custody Agreement (the "Custody Agreement") hereinafter referred to, and for the sale and delivery of the Shares to be sold by such Selling Stockholder hereunder, have been obtained; such Selling Stockholder has full right, power and authority to execute and deliver enter into this Agreement, to perform its obligations hereunder the Power of Attorney and the Custody Agreement and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement sell, assign, transfer and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that deliver the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter hereunder; and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, the Power of Attorney and the Custody Agreement have each been duly authorized, executed and delivered by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.;
(cb) Such Selling Stockholder is the lawful owner sale of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold compliance by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for all of the execution, delivery and performance by such Selling Stockholder provisions of this Agreement, or the Power of Attorney and the Custody Agreement and the consummation by such Selling Stockholder of the transactions of such Selling Stockholder herein and therein contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, with or result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms any indenture, mortgage, deed of any indenture trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or bound, by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, or (B) nor will such action result in any violation of the provisions of any charter the Certificate of Incorporation or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, By-laws of such Selling StockholderStockholder if such Selling Stockholder is a corporation, the Partnership Agreement of such Selling Stockholder if such Selling Stockholder is a partnership, or any judgment, statute or any order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder.;
(gc) Such such Selling Stockholder does not have any registration has good and valid title to the Shares to be sold at the Closing Date or other similar rights to have any equity or debt securities registered for sale Option Closing Date, as the case may be, by the Company under the Registration Statement or included in the offering of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not hereunder, free and clear of all liens, encumbrances, equities or adverse claims; such Selling Stockholder will have, or has waived immediately prior to the date hereof (which waiver remains in full force Closing Date or Option Closing Date, as the case may be, good and effect), any preemptive right, co-sale right or right of first refusal or other similar right valid title to purchase any of the Shares that are to be sold at the Closing Date or Option Closing Date, as the case may be, by any other such Selling Stockholder Stockholder, free and clear of all liens, encumbrances, equities or adverse claims; and, upon delivery of the certificates representing such Shares and payment therefor pursuant hereto good and valid title to such Shares, free and clear of all liens, encumbrances, equities or adverse claims, will pass to the Underwriter pursuant to this Agreement.several Underwriters assuming the Underwriters purchase the Shares in good faith and without notice of adverse claim within the meaning of the Uniform Commercial Code;
(id) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to, to or that which has constituted or which might reasonably be reasonably expected to, to cause or result in stabilization or manipulation of the price of any security of the Common Stock Company to facilitate the sale or resale of the Shares.; and
(le) Such all information furnished by the Selling Stockholder has not distributed for use in the Registration Statement and Prospectus is, and will not distributebe, prior to the later as of the Closing Date or Option Closing Date, as the case may be, true, correct and complete, and does not, and on the completion Closing Date or Option Closing Date, as the case may be, will not, contain any untrue statements or material fact or omit to state any material fact necessary to make such information not misleading.
(f) Each of the Underwriter’s distribution Selling Stockholders represents and warrants that certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement relating to such Shares, in the form heretofore furnished to you, duly executed and delivered by such Selling Stockholder to American Securities Transfer and Trust, as custodian (the "Custodian"), and that such Selling Stockholder has duly executed and delivered Powers of Attorney, in the form heretofore furnished to you, appointing the person or persons indicated in the Custody Agreement, and each of them, as such Selling Stockholder's Attorneys-in- fact (the "Attorneys-in-Fact" or any offering material one of them the "Attorney-in Fact") with authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided herein, 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 offering transactions contemplated by this Agreement and sale the Custody Agreement.
(g) Each of the Selling Stockholders specifically agrees that 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, and that 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. Each of the Selling Stockholders specifically agrees that 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 estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event. If 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 or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares by the Selling Stockholders other than any Preliminary Prospectushereunder, the Prospectus or the Registration Statement. Any certificate signed certificates representing such Shares shall be delivered by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder in accordance with the terms and conditions of this Agreement and the Custody Agreement, and actions taken by the Selling Stockholder pursuant to the Underwriter as Custody Agreement and by the Attorneys-in- Fact pursuant to the matters covered therebyPowers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, to each Underwriter and agrees with, the Underwriter as of the date hereof and as of the Closing Date Company that:
(a) Such All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder of this Agreement and, if such Selling Stockholder is named in Schedule VII hereto (such Selling Stockholders, the “Company Selling Stockholders”), the Power of Attorney (the “Power of Attorney”) and the Custody Agreement (the “Custody Agreement”) hereinafter referred to, and for the sale and delivery of the Shares to be sold by such Selling Stockholder hereunder, have been obtained; and such Selling Stockholder has full right, power and authority to execute and deliver enter into this Agreement, to perform its obligations hereunder and to consummate the transactions of and, if such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such is a Company Selling Stockholder, enforceable in accordance with its termsthe Power of Attorney and the Custody Agreement and to sell, except as enforceability may be limited by applicable bankruptcyassign, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally transfer and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that deliver the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of hereunder; this Agreement, and, if such Selling Stockholder hereunder shall not be terminatedis a Company Selling Stockholder, except as provided in this Agreementthe Power of Attorney and the Custody Agreement have each been duly authorized, executed and delivered by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(cb) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the The execution, delivery and performance by such Selling Stockholder of this Agreement, or and, if such Selling Stockholder is a Company Selling Stockholder, the Power of Attorney and the Custody Agreement, the sale of the Shares to be sold by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder therein will not (Ai) conflict with, with or result in a breach or violation of any of the terms or provisions of, or constitute a default (under, result in the termination or an event that with notice or lapse of time, or both, would constitute a default) underacceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property property, right or assets asset of such Selling Stockholder pursuant to to, any lawindenture, statutemortgage, rule or regulation or the terms deed of any indenture trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or bound, by which such Selling Stockholder is bound or to which any of the property property, right or assets asset of such Selling Stockholder is subject, or (Bii) result in any violation of the provisions of any the charter or bylaws by-laws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other similar organizational documents, as applicable, documents of such Selling Stockholder, Stockholder or (iii) result in the violation of any law or statute or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, arbitrator or governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholderagency.
(gc) Such Selling Stockholder does not have any registration has good and valid title to the Shares to be sold at the Closing Date or other similar rights the Option Closing Date, as the case may be, by such Selling Stockholder hereunder; such Selling Stockholder will have, immediately prior to have any equity the Closing Date or debt securities registered for sale the Option Closing Date, as the case may be, good and valid title to the Shares to be sold at the Closing Date by the Company under the Registration Statement such Selling Stockholder, free and clear of all liens, encumbrances, equities or included in the offering adverse claims; and, upon delivery of the certificates representing such Shares and payment therefor pursuant hereto, good and valid title to such Shares, except for such rights as have been waived (which waiver remains in full force free and effect) clear of all liens, encumbrances, equities or which are described in adverse claims, will pass to the Prospectus (and which have been complied with)several Underwriters.
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(kd) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to, to or that might could reasonably be reasonably expected to, to cause or result in any stabilization or manipulation of the price of the Common Shares.
(e) The Time of Sale Prospectus, at the Applicable Time did not, and as of the Closing Date or the Option Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence applies only to written information furnished to the Company by the Selling Stockholder specifically for use in the Time of Sale Prospectus, it being understood and agreed that the only such information consists of the name, address, the number of shares of Stock being offered by such Selling Stockholder and the number of Shares beneficially owned by such Selling Stockholder (the “Selling Stockholder Information”).
(f) As of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration Statement and any such post-effective amendment complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to facilitate state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date and as of the Option Closing Date, as the case may be, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence applies only to the Selling Stockholder Information.
(g) As of the date hereof and as of the Closing Date and as of the Option Closing Date, as the case may be, the sale or resale of the SharesShares by such Selling Stockholder is not and will not be prompted by any material information concerning the Company which is not set forth in the Registration Statement, Time of Sale Prospectus or the Prospectus.
(i) None of such Selling Stockholder or its subsidiaries or affiliates, or any director or executive officer thereof or, to such Selling Stockholder’s knowledge, any employee, agent or representative of such Selling Stockholder or of any of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) such Selling Stockholder and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) neither such Selling Stockholder nor its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(i) The operations of such Selling Stockholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting laws and regulations, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where such Selling Stockholder and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Stockholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Selling Stockholder, threatened.
(i) None of such Selling Stockholder, any of its subsidiaries, or any director, officer, or employee thereof, or, to such Selling Stockholder’s knowledge, any agent, affiliate or representative of such Selling Stockholder or any of its subsidiaries, is an individual or entity that is, or is owned or controlled by one or more persons that are:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) , the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Stockholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person:
(A) to fund or facilitate any activities or business of or with any person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any person (including any person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past 5 years, such Selling Stockholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, any dealings or transactions with any person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(k) To the extent a Selling Stockholder is an entity, such Selling Stockholder has been duly organized and is validly existing and in good standing under the laws of its respective jurisdictions of organization.
(l) Such Selling Stockholder is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(m) 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 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 not distributed notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will not distributehave been registered in the name of Cede or another nominee designated by DTC, prior 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 later accounts of the Closing Date several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) If such Selling Stockholder is a Company Selling Stockholder, such Selling Stockholders represents and the completion warrants that book-entry securities entitlements representing all of the UnderwriterShares to be sold by such Selling Stockholders hereunder have been placed in custody under a Custody Agreement relating to such Shares, in the form heretofore furnished to you, duly executed and delivered by such Selling Stockholder to American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), and that such Selling Stockholder has duly executed and delivered Powers of Attorney, in the form heretofore furnished to you, appointing ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and each of them, as such Selling Stockholder’s distribution Attorneys-in-fact (the “Attorneys-in-Fact” or any one of them the “Attorney-in Fact”) with authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided herein, to authorize the delivery of the Shares, any offering material Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the offering transactions contemplated by this Agreement and sale the Custody Agreement.
(ii) If such Selling Stockholder is a Company Selling Stockholder, such Selling Stockholders specifically agrees that the Shares represented by the book-entry securities entitlements held in custody for such Selling Stockholder under the Custody Agreement, are subject to the interests of the Underwriters hereunder, and that 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. Each of the Selling Stockholders specifically agrees that 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 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, corporation or similar organization, by the dissolution of such partnership, corporation or organization, 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 similar organization should be dissolved, or if any other such event should occur, before the delivery of the Shares by the Selling Stockholders other than any Preliminary Prospectushereunder, the Prospectus or the Registration Statement. Any certificate signed certificates representing such Shares shall be delivered by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder in accordance with the terms and conditions of this Agreement and the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Underwriter Powers of Attorney shall be as to valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the matters covered therebyCustodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Sources: Underwriting Agreement (ADT Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally (but only as to itself and not as jointly, individually with respect to any other Selling Stockholder) himself, herself or itself, represents and warrants to, and agrees with, the Underwriter as of the date hereof and as of the Closing Date that:
(a) Neither such Selling Stockholder nor any person acting on his, her or its behalf (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405 under the Securities Act) relating to the Stock.
(b) Immediately prior to any Delivery Date on which such Selling Stockholder is selling shares of Stock, such Selling Stockholder will have good and marketable title to the shares of Stock to be sold by such Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims arising under a Custody Agreement.
(c) If such Selling Stockholder is a Vestar Selling Stockholder, the stock to be sold by such Selling Stockholder hereunder is subject to the interest of the Underwriters, and the obligations of such Selling Stockholder hereunder shall not be terminated by any operation of law or the occurrence of any other event. If such Selling Stockholder is a Management Selling Stockholder, the stock to be sold by such Selling Stockholder hereunder, which is held in custody for the Selling Stockholder, is subject to the interest of the Underwriters and the Attorney-in-Fact and the Custodian (each as defined below), the arrangements made by such Selling Stockholder for such custody are to that extent irrevocable, and the obligations of such Selling Stockholder hereunder shall not be terminated by any operation of law or the occurrence of any other event.
(d) Upon payment for the Stock to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) DTC will acquire good and marketable title to the Stock free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the New York Uniform Commercial Code (the “UCC”), (iii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock, and (iv) an action based on an “adverse claim” (as defined in the UCC) to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriters with respect to such security entitlement (assuming that the Underwriters are purchasing such Stock without notice of any adverse claim). For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Stock 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.
(e) If such Selling Stockholder is a Management Selling Stockholder, such Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” and together with all other similar agreements executed by the other Management Selling Stockholders, the “Custody Agreements”) with Broadridge Corporate Issuer Solutions, Inc. as custodian (the “Custodian”), for delivery under this Agreement, shares of Common Stock held in a book-entry position with the Company’s transfer agent (which are accompanied by duly executed stock powers in blank which are affixed with signature medallion guarantees from an eligible institution) representing the shares of Stock to be sold by such Selling Stockholder hereunder.
(f) If such Selling Stockholder is a Management Selling Stockholder, such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Management Selling Stockholders, the “Powers of Attorney”) appointing ▇▇. ▇▇▇▇▇ ▇. Nardella as attorney-in-fact, with full power of substitution, and with full authority to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Stockholder.
(g) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreementauthority, corporate or otherwise, to perform its obligations hereunder and to consummate the transactions of enter into this Agreement and, if such Selling Stockholder contemplated by this Agreement. This is a Management Selling Stockholder, the Custody Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. Power of Attorney.
(h) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(i) If such Selling Stockholder is a Management Selling Stockholder, the Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and constitutes the legal, constitute valid and legally binding obligation obligations of such Selling Stockholder, Stockholder enforceable against the Selling Stockholder in accordance with its their terms, except as enforceability may be limited by applicable subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting creditors’ rights generally and except as enforceability may be subject to generally, (ii) general equitable principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)) and (iii) an implied covenant of good faith and fair dealing.
(bj) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests The sale of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, Stock by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by Agreement, and, if such Selling Stockholder and consummation of any is a Management Stockholder, of the other transactions Custody Agreement and the Power of such Attorney, by the Selling Stockholder contemplated herein and the consummation by such the Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder transactions contemplated hereby, and thereby, do not and will not (Ai) conflict with, with or result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition any indenture, mortgage, deed of any lientrust, charge or encumbrance upon any property or assets of such Selling Stockholder pursuant to any lawloan agreement, statutelicense, rule or regulation or the terms of any indenture lease or other agreement or instrument to which such Selling Stockholder is a party or bound, by which such Selling Stockholder is bound or to which any of the property or assets of such the Selling Stockholder is subject, or (Bii) if such Selling Stockholder is a Vestar Selling Stockholder, result in any violation of the provisions of any charter or bylaws or the certificate of formation, trust agreement, partnership agreement, articles of partnership formation or other operating agreement (or similar organizational documents, as applicable, ) of such Selling Stockholder, or (iii) result in any violation of any statute or any judgment, order, decree statutedecree, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) 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 , except in the offering case of clauses (i) and (iii) above, for any such contraventions that would not, in the aggregate, reasonably be expected to materially interfere with the consummation of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold transactions contemplated by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(ik) Except as disclosed in No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the Prospectusproperty or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, there are no contractsthe execution, agreements delivery and performance of this Agreement, or, if such Selling Stockholder is a Management Stockholder, of the Custody Agreement or understandings between the Power of Attorney, by such Selling Stockholder and any person that would give rise to a valid claim against the Company consummation by such Selling Stockholder of the transactions contemplated hereby, or thereby, except for the Underwriter for a brokerage commissionregistration of the Stock under the Securities Act and such consents, finder’s fee approvals, authorizations, orders, filings, registrations or other like payment qualifications as may be required under the Exchange Act and applicable state securities laws or by FINRA in connection with this offeringthe purchase and sale of the Stock by the Underwriters.
(jl) All In respect of any statements in or omissions from the Registration Statement, the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus, as the case may be, made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof, such Selling Stockholder hereby makes the same representations and warranties to each Underwriter as the Company makes to such Underwriter under Sections (1)(d), (e), (f) and (g); it being understood and agreed that the foregoing applies only to such information furnished by or on behalf of such Selling Stockholder to the Company, which consists of: (A) the legal name, address and the number of shares of Common Stock owned by such Selling Stockholder; and (B) the other information with respect to such Selling Stockholder (excluding percentages) which appear in writing for use the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (collectively, the “Selling Stockholder Information”).
(m) The sale of the shares of Stock by such Selling Stockholder is not prompted by any material information concerning the Company which is not set forth in the Registration Statement and Statement, the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material factPricing Disclosure Package or the Prospectus.
(kn) Such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to, to or that might has constituted or that could reasonably be reasonably expected to, to cause or result in the stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale any security of the Shares.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material Company in connection with the offering and sale of the Shares by shares of the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration StatementStock. Any certificate signed by any Selling Stockholder, or on behalf any officer of a any Selling Stockholder Stockholder, and delivered to the Underwriter Representatives or to counsel for the Underwriter Underwriters in connection with the offering of the Stock shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter Stockholder, as to the matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. (a) Each Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, and agrees with, the Underwriter Underwriters as of the date hereof and as of the Closing Date thatfollows:
(ai) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by such Selling Stockholder Stockholder, and constitutes the legala valid, valid legal and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium reorganization or similar laws affecting creditors’ the rights of creditors generally and except as enforceability may be subject to general principles of equity (regardless equity. The execution, delivery and performance of whether such enforceability is considered this Agreement and the consummation of the transactions herein contemplated will not result in a proceeding in equity breach or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests violation of any of the Underwriter terms and that provisions of, or constitute a default under, any statute, agreement or instrument to which the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner a party or by which it is bound or to which any of the Shares to be sold by such Selling Stockholder hereunder andits property is subject, upon sale and delivery ofor any order, and payment forrule, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear regulation or decree of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal court or governmental agency or body having jurisdiction over the Selling Stockholder or any third partyof its properties, foreign except for violations and defaults that individually or domesticin the aggregate would not reasonably be expected to have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Selling Stockholder’s charter or by laws. No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the execution, delivery and performance of this Agreement or for the consummation of the transactions contemplated hereby, including the sale of the Additional Shares by the Selling Stockholder, except as may be required under the Securities Act or state securities or blue sky laws; and the Selling Stockholder has the power and authority to enter into this Agreement and to sell the Additional Shares as contemplated by this Agreement.
(ii) Such Selling Stockholder is, on the date hereof, the record and beneficial owner of all of the Additional Shares to be sold by the Selling Stockholder hereunder free and clear of all liens, encumbrances, equities and claims and has duly indorsed such Additional Shares in blank or has duly signed a stock power assigning all right, title and interest to the Additional Shares to be sold by such Selling Stockholder of this AgreementStockholder, with all signatures appropriately guaranteed by an eligible guarantor institution with membership in an approved medallion guaranty program pursuant to Rule 17Ad-15 under the Exchange Act.
(iii) On the applicable Option Closing Date, all stock transfer or consummation other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may Additional Shares will be required under the state securities laws, the blue sky laws of any jurisdiction fully paid or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement provided for by such Selling Stockholder and consummation of all laws imposing such taxes will be fully complied with.
(iv) Such Selling Stockholder, directly or indirectly, has not entered into any commitment, transaction or other arrangement, including any prepaid forward contract, 10b5-1 plan or similar agreement, which transfers or may transfer any of the other transactions legal or beneficial ownership or any of the economic consequences of ownership of the Additional Shares, except as has been previously disclosed in writing to the Underwriters.
(v) Such Selling Stockholder represents and warrants that it has not prepared or had prepared on its behalf or used or referred to any “free writing prospectus” (as defined in Rule 405 of the Act) and further represents that it has not distributed and will not distribute any written materials in connection with the offer or sale of the Additional Shares that could otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed with the Commission or retained under Rule 433 of the Act.
(vi) All information relating to such Selling Stockholder furnished by or on behalf of such Selling Stockholder contemplated herein in writing expressly for use in the Registration Statement, the Time of Sale Disclosure Package or any Prospectus, as the case may be, is, as of the Closing Date and as of each Option Closing Date, true, correct, and complete in all material respects, and does not and, as of the Closing Date and each Option Closing Date, will not contain any untrue statement of a material fact or omit to state any material fact necessary to make such information, in light of the circumstances under which they were made, not misleading; it being understood and agreed that the only information furnished by such Selling Stockholder or the fulfillment consists of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, name of such Selling Stockholder, or any judgmentthe number of offered Additional Shares, orderthe number and type of securities held, decree statute, rule or regulation applicable and the address and other information with respect to such Selling Stockholder (excluding percentages) that appear in the table (and corresponding footnotes) under the caption “Security Ownership of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Management and Principal and Selling StockholderStockholders” in the Prospectus.
(gvii) 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 an offering of the Sharescontemplated by this Agreement, except for such rights as that have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with)waived.
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(kviii) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to, to or that might would reasonably be reasonably expected to, to cause or result in stabilization or manipulation of the price of any security of the Common Stock Company to facilitate the sale or resale of the Additional Shares.
(lb) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter Representative or to the Underwriters’ counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter Underwriters as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each The Selling Stockholder Stockholders, severally (but only as to itself and not as jointly, represent, warrant to any other Selling Stockholder) represents and warrants to, and agrees with, agree with the Underwriter as of the date hereof hereof, and if the Selling Stockholders are selling Additional Shares on an Option Closing Date, as of the any such Option Closing Date Date, that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation or on behalf of such each Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such The execution and delivery by the Selling Stockholder agrees that Stockholders of, and the Shares to be sold performance by such the Selling Stockholder are subject to Stockholders of their obligations under, this Agreement will not contravene any provision of applicable law, or the interests organizational documents of the Underwriter and that Selling Stockholders, or any agreement or other instrument binding upon the obligations of such Selling Stockholder hereunder shall not be terminatedStockholders or any judgment, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law order or by the occurrence decree of any other eventgovernmental body, agency or court having jurisdiction over the Selling Stockholders.
(c) Such The Selling Stockholder is the lawful owner Stockholders have, and on each Option Closing Date will have, good and valid title to all of the Shares to be sold by the Selling Stockholders pursuant to this Agreement on such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Sharesdate, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoeverany adverse claim.
(d) Such The Shares to be sold by the Selling Stockholders pursuant to this Agreement are certificated securities in registered form and are not held in any securities account or by or through any securities intermediary within the meaning of the Uniform Commercial Code as in effect in the State of New York. Each Selling Stockholder has full legal right and powerhas, and all authorizations on each Option Closing Date will have, full partnership right, power and approvals required by lawauthority to hold, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may to be sold by such the Selling Stockholder Stockholders pursuant to this Agreement and to comply with upon the Underwriter's acquiring possession of such Shares and paying the purchase price therefor as herein contemplated, the Underwriter will acquire its interests in such Shares (including, without limitation, all rights that such Selling Stockholder’s other obligations hereunderStockholder has or has the power to transfer in such Shares) free of any adverse claim.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required Certificates for all of the execution, delivery and performance Shares to be sold by such the Selling Stockholder of Stockholders pursuant to this Agreement, in suitable form for transfer by delivery or consummation accompanied by such Selling Stockholder duly executed instruments of transfer or assignment in blank, with signatures guaranteed, will be placed in custody with the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities lawsAmerican Stock Transfer & Trust Co., the blue sky laws of any jurisdiction transfer agent for the Company's Common Stock, no later than the business day preceding the Closing Date or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documentsOption Closing Date, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable with irrevocable conditional instructions to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of deliver the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(if) Except as disclosed in The Selling Stockholders are not prompted to sell the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and Shares to be sold to the Underwriter hereunder by any person that would give rise to a valid claim against material non-public information concerning the Company or its subsidiaries which is not set forth or incorporated by reference in the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with Prospectus to sell their Shares pursuant to this offeringAgreement.
(jg) All information furnished by or on behalf Each of such the Selling Stockholder in writing for use in Stockholders have reviewed and are familiar with the Registration Statement and the Prospectus is trueProspectus. The Selling Stockholder Information (as defined herein) contained in the Registration Statement or the Prospectus, correct or any amendments or supplements thereto, on the date hereof and complete in all material respects and does on the Closing Date (and, if any Additional Shares are purchased, on any Option Closing Date), such statements did not or will not contain any untrue statement of a material fact.
(k) Such fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. "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 Information" shall mean the information in stabilization or manipulation the Prospectus relating to (i) the beneficial ownership of the price of the Common Stock by the Selling Stockholders, (ii) the biographical information with respect to facilitate Lawrence H. Guffey and David M. Tolley and (iii) information wi▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ par▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ Selling Stockholders in the sale or resale offering of the Shares.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Centennial Communications Corp /De)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants toto each Underwriter, and agrees within each case solely with respect to such Selling Stockholder and the Shares to be sold by such Selling Stockholder hereunder, the Underwriter as of the date hereof and as of the Closing Date that:
(a) Such Selling Stockholder has now has, and on the Closing Date and any Option Closing Date will have, valid and marketable title to the Shares to be sold by such Selling Stockholder, free and clear of any lien, claim, community property right, voting trust agreement, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) Such Selling Stockholder now has, and on the Closing Date and any Option Closing Date will have, full legal right, power and authority authorization, and any approval required by law, to execute sell, assign transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire valid and marketable title to perform its obligations hereunder such Shares free and to consummate clear of any lien, claim, community property right, voting trust agreement, security interest, or other encumbrance.
(c) This Agreement and the transactions Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder contemplated by this Agreement. This Agreement and are the transactions contemplated by this Agreement have been duly valid and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by binding agreements of such Selling Stockholder and constitutes the legal, valid and binding obligation of enforceable against such Selling Stockholder, enforceable Stockholder in accordance with its their terms, except as to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium insolvency or other similar laws relating to or affecting creditors’ ' rights and remedies generally and except as enforceability to the extent that rights to indemnity and contribution under this Agreement may be subject to general limited by federal or state securities laws or by principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoeverpublic policy.
(d) Such Selling Stockholder has full legal right Neither the execution and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all delivery of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory the Custody Agreement by or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions on behalf of such Selling Stockholder nor the consummation of the transactions herein or therein contemplated hereinby or on behalf of such Selling Stockholder (i) requires any consent, approval, authorization or order of, or filing or registration with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as have been obtained under the Securities Act and such as may be required under the Act or such as may be required under state securities laws, the blue sky or Blue Sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with governing the purchase and distribution of the Shares) or (ii) conflicts or will conflict with or constitutes or will constitute a breach of, or default under, or violates or will violate (A) any agreement, indenture or other instrument to which such Selling Stockholder is a party, by which such Selling Stockholder is or may be bound or to which any of such Selling Stockholder’s Shares by the Underwriter.
's property or assets is subject, or (fB) The executionany statute, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by law, rule, regulation, ruling, judgment, injunction, order or decree applicable to such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 to any property or assets of such Selling Stockholder pursuant to Stockholder, except any lawsuch statutes, statutelaws, rule rules, regulations, rulings, judgments, injunctions, orders or regulation decrees the violation of which, individually or in the terms of any indenture or other agreement or instrument to which aggregate, could not (1) have a material adverse effect on such Selling Stockholder is party Stockholder's ability to consummate the transactions contemplated in this Agreement or bound, or to which any of in the property or assets of such Selling Stockholder is subject, Custody Agreement or (B2) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to breach by such Selling Stockholder of any court representation or any publicwarranty contained herein or therein.
(e) The Registration Statement and the Prospectus, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over insofar as they relate to such Selling Stockholder, do not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(gf) Such Although such Selling Stockholder has not undertaken (and has no duty to undertake) to determine independently, and does not assume any responsibility for information contained in the Registration Statement or the Prospectus (except for information contained therein under the heading "Principal and Selling Stockholders" relating to such Selling Stockholder), nothing has come to the attention of such Selling Stockholder that has caused such Selling Stockholder to believe, and such Selling Stockholder does not have any registration knowledge or other similar rights any reason to have any equity or debt securities registered for sale by the Company under believe, that the Registration Statement or included in the offering of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (or any amendment or supplement thereto) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) The representations and which have been complied with)warranties of such Selling Stockholder in the Custody Agreement are, and on the Closing Date and any Option Closing Date will be, true and correct in all material respects.
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) Such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action designed to, to or that might reasonably be reasonably expected to, to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel except for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to lock-up arrangements described in the Underwriter as to the matters covered therebyProspectus.
Appears in 1 contract
Sources: Underwriting Agreement (SPR Inc)
Representations and Warranties of the Selling Stockholders. (a) Each Selling Stockholder Stockholder, severally (but only as to itself and not as to any other Selling Stockholder) jointly, represents and warrants to, and agrees with, the each Underwriter as of the date hereof hereof, and shall be deemed to represent and warrant to, and agree with, each Underwriter as of the Closing Date thatand each Option Closing Date, as follows:
(ai) Such Each Selling Stockholder has full rightStockholder, power which is not a natural person, is validly existing and authority to execute and deliver in good standing under the laws of the jurisdiction of its formation.
(ii) Each of this Agreement, to perform the Irrevocable Power of Attorney and Custody Agreement, dated , 2015 (the “Custody Agreement”), by and between the Company, Selling Stockholders, and Computershare Inc., a Delaware corporation, and its obligations hereunder wholly-owned subsidiary, Computershare Trust Company, N.A., a national banking association (collectively, the “Custodian and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement Warrant Agent”), and the transactions contemplated Warrant Agreement, dated , 2015 (the “Warrant Agreement”), by this Agreement and between the Company, Selling Stockholders and Custodian and Warrant Agent have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by such Selling Stockholder Stockholder, and constitutes the legalconstitute a valid, valid legal and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnity may be limited by federal or state securities laws and except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium reorganization or similar laws affecting creditors’ the rights of creditors generally and except as enforceability may be subject to general principles of equity (regardless equity. The execution, delivery and performance of whether such enforceability is considered this Agreement, the Custody Agreement and the Warrant Agreement and the consummation of the transactions herein and therein contemplated will not result in a proceeding in equity breach or at law)violation of any of the terms and provisions of, or constitute a default under, any statute, agreement or instrument to which a Selling Stockholder is a party or by which it is bound or to which any of its property is subject, or any order, rule, regulation or decree of any court or governmental agency or body having jurisdiction over such Selling Stockholder or any of its properties. No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Custody Agreement and the Warrant Agreement or for the consummation of the transactions contemplated hereby and thereby, including the sale of the Secondary Shares by such Selling Stockholder, except as may be required under the Exchange Act, the Securities Act, state securities or blue sky laws, the bylaws, rules and regulations of FINRA or the bylaws, rules and regulations of the NYSE MKT; and such Selling Stockholder has the power and authority to enter into this Agreement, the Custody Agreement and the Warrant Agreement and to sell the Secondary Shares as contemplated hereby and thereby.
(biii) Such Selling Stockholder agrees that is the record and beneficial owner of all of the Secondary Shares to be sold by such Selling Stockholder hereunder and under the Custody Agreement and the Warrant Agreement free and clear of all liens, encumbrances, equities and claims and has duly indorsed such Secondary Shares in blank or has duly signed a stock power assigning all right, title and interest to the Secondary Shares to be sold by such Selling Stockholder, with all signatures appropriately guaranteed by an eligible guarantor institution with membership in an approved medallion guaranty program pursuant to Rule 17Ad-15 under the Exchange Act.
(iv) The Secondary Shares held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriter and Underwriters hereunder, the arrangements made by such Selling Stockholder for such custody are to that extent irrevocable in accordance with the terms of the Custody Agreement; the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreementterminated by operation of law, by any act the dissolution of such Selling StockholderStockholder to the extent such Selling Stockholder is not a natural person, by operation of law or by the occurrence of any other event; if such Selling Stockholder should be dissolved to the extent such Selling Stockholder is not a natural person, or if any other such event should occur, before the delivery of the Secondary Shares, the Secondary Shares shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement, the Custody Agreement and the Warrant Agreement.
(cv) Such Selling Stockholder has, and immediately prior to the Closing Date, each Option Closing Date, and each date on which a Warrant, Underwriters’ Warrant or Embedded Underwriters’ Warrant is exercised (each, a “Time of Delivery”), such Selling Stockholder will have, good and valid title to, and if such Secondary Shares are uncertificated, a valid “security entitlement” within the lawful owner meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Secondary Shares to be sold by such the Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shareshereunder, free and clear of all voting trust arrangements, pledges, liens, encumbrancesencumbrances or claims, equitiesexcept for any liens, encumbrances or claims and security interests whatsoeverarising or described in the Custody Agreement or the Warrant Agreement or otherwise in favor of the Underwriters.
(dvi) Such Selling Stockholder has full legal right and powerAt each Time of Delivery, and all authorizations and approvals required by law, to enter into this Agreement, to sell, stock transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is taxes (other than income taxes) that are required for to be paid in connection with the execution, delivery sale and performance by such Selling Stockholder of this Agreement, or consummation transfer by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may Secondary Shares will be required under the state securities laws, the blue sky laws of any jurisdiction fully paid or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement provided for by such Selling Stockholder and consummation of all laws imposing such taxes will be fully complied with.
(vii) Such Selling Stockholder, directly or indirectly, has not entered into any commitment, transaction or other arrangement, including any prepaid forward contract, 10b5-1 plan or similar agreement, which transfers or may transfer any of the other transactions legal or beneficial ownership or any of the economic consequences of ownership of the Secondary Shares.
(viii) Such Selling Stockholder represents and warrants that it has not prepared or had prepared on its behalf or used or referred to any “free writing prospectus” (as defined in Rule 405 of the Securities Act) and further represents that it has not distributed and will not distribute any written materials in connection with the offer or sale of the Secondary Shares that could otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed with the Commission or retained under Rule 433 of the Securities Act.
(ix) All information relating to such Selling Stockholder contemplated herein furnished directly by such Selling Stockholder in writing expressly for use in the Registration Statement, the Pricing Disclosure Package or the fulfillment Prospectus, as the case may be, if any, is as of the terms hereof by Closing Date and each Option Closing Date, true, correct, and complete in all material respects, and does not, and will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading. In addition, such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that with notice or lapse confirms as accurate the number of time, or both, would constitute a default) under, or result in the creation or imposition shares of any lien, charge or encumbrance upon any property or assets of such Selling Stockholder pursuant to any law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of Common Stock set forth opposite such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable ’s name in the Pricing Disclosure Package and the Prospectus under the caption “Principal and Selling Stockholders” (both prior to such Selling Stockholder and after giving effect to the sale of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholderthe Secondary Shares).
(gx) 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 an offering contemplated by this Agreement, except as set forth in that certain Closing Agreement 2 dated May 21, 2013.
(xi) 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 Shares, except for such rights as have been waived price of any security of the Company to facilitate the sale or resale of the Secondary Shares in violation of the Securities Act or the Exchange Act.
(which waiver remains in full force and effectxii) or which are described Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Prospectus Registration Statement, the Pricing Disclosure Package and the Prospectus.
(xiii) In order to document the Underwriters’ compliance with the reporting and which have been complied withwithholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein completed, the Selling Stockholder has delivered or will deliver to the Representative prior to or at the first Time of Delivery a properly completed and executed United States Treasury Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(ixiv) Except as disclosed in the ProspectusPricing Disclosure Package, there are no contracts, agreements or understandings between such the Selling Stockholder and any person that would give rise to a valid claim against the Company such Selling Stockholder or the any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) 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.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Foundation Healthcare, Inc.)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) Stockholders represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation or on behalf of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold The execution and delivery by such Selling Stockholder are subject to of, and the interests performance by such Selling Stockholder of its obligations under, this Agreement, the Underwriter and that the obligations Custody Agreement signed by or on behalf of such Selling Stockholder hereunder shall not be terminatedand ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, except as provided in this AgreementCustodian, by any act of such Selling Stockholder, by operation of law or by relating to the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner deposit of the Shares to be sold by such Selling Stockholder hereunder and(the "Custody Agreement") and the Power of Attorney appointing certain individuals as such Selling Stockholder's attorneys-in-fact to the extent set forth therein, upon sale relating to the transactions contemplated hereby and delivery ofby the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, and payment for, such Shares as provided herein, or the certificate of incorporation or by-laws of such Selling Stockholder will convey to (if such Selling Stockholder is a corporation), or any agreement or other instrument binding upon such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the Underwriter good performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and marketable title to such sale of the Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(dc) Such Selling Stockholder has full has, and on the Closing Date will have, valid title to the Shares to be sold by such Selling Stockholder and the legal right and power, and all authorizations authorization and approvals approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver all of the Shares which may to be sold by such Selling Stockholder.
(d) The Shares to be sold by such Selling Stockholder pursuant to this Agreement have been duly authorized and to comply with such Selling Stockholder’s other obligations hereunderare validly issued, fully paid and non-assessable.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for The Custody Agreement and the execution, delivery and performance by such Selling Stockholder Power of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as Attorney have been obtained under the Securities Act duly authorized, executed and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished delivered by or on behalf of such Selling Stockholder in writing for use in and are valid and binding agreements of such Selling Stockholder.
(f) Delivery of the Shares to be sold by such Selling Stockholder pursuant to this Agreement will pass title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances.
(g) If the Selling Stockholder is ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇ or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (i) the Registration Statement and the Prospectus is trueStatement, correct and complete in all material respects and does when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material factfact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph 2(g) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(kh) Such For each Selling Stockholder has not taken other than those making a representation and will not takewarranty pursuant to Section 2(g) above, 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 all information relating to facilitate the sale or resale of the Shares.
(l) Such such Selling Stockholder has not distributed and will not distribute, prior furnished to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material Company in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed writing by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder for use in the Registration Statement or the Prospectus is, and on the Closing Date will be, true, correct and complete and does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to the Underwriter as state any material fact necessary to the matters covered therebymake such information not misleading.
Appears in 1 contract
Sources: Underwriting Agreement (Diamond Technology Partners Inc)
Representations and Warranties of the Selling Stockholders. Each of ---------------------------------------------------------- the Selling Stockholders, and as to 2(g) below, each Selling Stockholder severally (but only as to itself other than the Selling Founders, hereby severally, and not as jointly, represent and warrant to any other Selling Stockholder) represents and warrants to, and agrees with, the Underwriter as agree with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and constitutes the legalBoston Equiserve, valid and binding obligation of such Selling Stockholderas Custodian, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject relating to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner deposit of the Shares to be sold by such Selling Stockholder hereunder and(the "Custody Agreement") and the Power of Attorney appointing certain individuals as such Selling Stockholder's attorneys-in-fact to the extent set forth therein, upon sale relating to the transactions contemplated hereby and delivery ofby the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, and payment for, such Shares as provided herein, or the certificate of incorporation or by-laws of such Selling Stockholder will convey to (if such Selling Stockholder is a corporation), or any agreement or other instrument binding upon such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the Underwriter good performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and marketable title to such sale of the Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(dc) Such Selling Stockholder has full has, and on the Closing Date will have, valid title to the Shares to be sold by such Selling Stockholder and the legal right and power, and all authorizations authorization and approvals approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver all of the Shares which may to be sold by such Selling Stockholder.
(d) The Shares to be sold by such Selling Stockholder pursuant to this Agreement have been duly authorized and to comply with such Selling Stockholder’s other obligations hereunderare validly issued, fully paid and non- assessable.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for The Custody Agreement and the execution, delivery and performance by such Selling Stockholder Power of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as Attorney have been obtained under the Securities Act duly authorized, executed and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement delivered by such Selling Stockholder and consummation are valid and binding agreements of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(gf) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any Delivery of the Shares that are to be sold by any other such Selling Stockholder to the Underwriter pursuant to this AgreementAgreement will pass title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(jg) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and or the Prospectus is is, and on the Closing Date will be, true, correct correct, and complete in all material respects complete, and does not not, and on the Closing Date will not, contain any untrue statement of a material factfact or omit to state any material fact necessary to make such information not misleading.
(k) 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.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders, including the Insiders (defined below) severally (but only as to itself and not as jointly, represents, warrants and covenants to any other Selling Stockholder) represents and warrants to, and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Stockholder Irrevocable Election to Sell (the "Irrevocable Election"), the Selling Stockholder's Irrevocable Power of Attorney appointing certain individuals as such Selling Stockholder's attorneys-in-fact to the extent set forth therein (the "Power of Attorney"), and the Letter of Transmittal and Custody Agreement signed by such Selling Stockholder and constitutes the legalChaseMellon Shareholder Services, valid and binding obligation of such Selling StockholderL.L.C., enforceable in accordance with its termsas Custodian, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject relating to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner deposit of the Shares to be sold by such Selling Stockholder hereunder and(the "Custody Agreement"), upon sale relating to the transactions contemplated hereby and delivery ofby the Registration Statement will not result in a breach of any of the terms and provisions of or constitute a default under, and payment for, such Shares as provided herein, the certificate of incorporation or bylaws of such Selling Stockholder (if such Selling Stockholder is a corporation), or any agreement or other instrument to which such Selling Stockholder is a party (or by which any property or assets of such Selling Stockholder is bound or to which any property or assets of such Selling Stockholder is subject) or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder which judgment, order or decree names the Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement, the Irrevocable Election, the Power of Attorney or the Custody Agreement of such Selling Stockholder, except such as may be required by the Securities Act or by securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date will convey to the Underwriter have, good and marketable title to the Shares to be sold by such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has and full legal right right, power (including, if such Selling Stockholder is a corporation or similar entity, corporate power) and power, and all authorizations and approvals required by law, authority to enter into this Agreement, the Irrevocable Election, the Power of Attorney and the Custody Agreement and to sell, transfer and deliver all of the Shares which may to be sold by such Selling Stockholder.
(d) To such Selling Stockholder's knowledge, the Shares to be sold by such Selling Stockholder pursuant to this Agreement have been duly authorized and to comply with such Selling Stockholder’s other obligations hereunderare validly issued, fully paid and non-assessable.
(e) No Consent ofThe Irrevocable Election, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery Custody Agreement and performance by such Selling Stockholder the Power of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as Attorney have been obtained under the Securities Act duly authorized, executed and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement delivered by such Selling Stockholder and consummation each is a valid and binding agreement of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(gf) Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by Upon the Company under the Registration Statement or included in the offering delivery of the Shares, except and against payment for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement, the Underwriters will obtain good and marketable title thereto, free and clear of any security interests, claims liens, equities and other encumbrances.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(jg) All information furnished in writing by or on behalf of such Selling Stockholder in writing for use in the Registration Statement is, and on the Prospectus is Closing Date will be, true, correct correct, and complete in all material respects complete, and does not not, and on the Closing Date will not, contain any untrue statement of a material factfact or omit to state any material fact necessary to make such information not misleading, and all information furnished in writing by or on behalf of such Selling Stockholder for use in the Prospectus is, and on the Closing Date will be, true, correct, and complete, and does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading in the light of the circumstances under which they were made.
(kh) 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.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and The sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to pursuant hereto is not prompted by any material information concerning the Underwriter as to Company or any of its subsidiaries which is not set forth in the matters covered therebyRegistration Statement or the documents incorporated by reference therein.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, and agrees with, to the Underwriter as of the date hereof hereof, and as of the Closing Date (defined herein) and each Option Closing Date (defined herein) and severally agrees with the Underwriter that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation or on behalf of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of such Selling Stockholder (if such Selling Stockholder is a corporation), or any agreement or other instrument binding upon such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder agrees that has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Stockholder are subject free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to the interests of the Underwriter enter into this Agreement and that the obligations of such Selling Stockholder hereunder shall not be terminatedto sell, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner of transfer and deliver the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to or a security entitlement in respect of such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of Upon payment for the Shares which may to be sold by such Selling Stockholder pursuant to this Agreement Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to comply securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement; for purposes of this representation, such Selling StockholderStockholder 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 other obligations hereundershare 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 Underwriter on the records of DTC will have been made pursuant to the UCC.
(e) No Consent ofSuch Selling Stockholder (other than The MBZ Charitable Remainder Unitrust, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domesticLinde Family Foundation and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇) has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is required for familiar with the executionRegistration Statement and Prospectus and has no knowledge of any material fact, delivery and performance by such Selling Stockholder of this Agreementcondition or information not disclosed in the Prospectus that has had, or consummation by such Selling Stockholder of may have, a Material Adverse Effect on the transactions of such Selling Stockholder contemplated hereinCompany and its subsidiaries, except such taken as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such whole. Such Selling Stockholder is party or bound, or to which not prompted by any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(g) Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by information concerning the Company under the Registration Statement or included in the offering of the Shares, except for such rights as have been waived (its subsidiaries which waiver remains in full force and effect) or which are described is not set forth in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the sell its Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(f) (i) Except as disclosed Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the ProspectusProspectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, there (ii) the Registration Statement and the Time of Sale Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder; provided that the representations and warranties set forth in this paragraph 2(f) are no contracts, agreements limited to statements or understandings between omissions made in reliance upon information relating to such Selling Stockholder and any person that would give rise furnished to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished writing by or on behalf of such Selling Stockholder in writing expressly for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) 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.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary ProspectusStatement, the Prospectus or the Registration Statement. Any certificate signed by any amendments or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered therebysupplements thereto.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, and agrees with, the Underwriter as each of the date hereof Underwriters and as of the Closing Date Company that:
(a) Such All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder of this Agreement and the Power of Attorney and the Custody Agreement hereinafter referred to, and for the sale and delivery of the Shares to be sold by such Selling Stockholder hereunder, have been obtained; and such Selling Stockholder has full right, power and authority to execute and deliver enter into this Agreement, to perform its obligations hereunder the Power of Attorney and the Custody Agreement and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement sell, assign, transfer and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that deliver the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.hereunder;
(cb) Such Selling Stockholder is the lawful owner The sale of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold compliance by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for all of the execution, delivery and performance by such Selling Stockholder provisions of this Agreement, or the Power of Attorney and the Custody Agreement and the consummation by such Selling Stockholder of the transactions of such Selling Stockholder herein and therein contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, with or result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms indenture, mortgage, deed of any indenture trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or bound, by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, or (B) nor will such action result in any violation of the provisions of any charter the Certificate of Incorporation or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, By-laws of such Selling StockholderStockholder if such Selling Stockholder is a corporation, the Partnership Agreement of such Selling Stockholder if such Selling Stockholder is a partnership, the Trust Agreement or Declaration of Trust of such Selling Stockholder if such Selling Stockholder is a trust, the Certificate of Formation or Limited Liability Company Agreement of such Selling Stockholder if such Selling Stockholder is a limited liability company, or any judgment, statute or any order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder.;
(gc) Such Selling Stockholder does not have any registration or other similar rights has, and immediately prior to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering each Time of the Shares, except for Delivery such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not will have, or has waived prior good and valid title to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder hereunder, free and any person that would give rise to a valid claim against the Company clear of all liens, encumbrances, equities or the Underwriter for a brokerage commissionclaims; and, finder’s fee or other like upon delivery of such Shares and payment in connection with this offering.
(j) All information furnished by or on behalf of therefor pursuant hereto, such Selling Stockholder in writing for use in will transfer to the Registration Statement several Underwriters, good and the Prospectus is truevalid title to such Shares, correct free and complete in clear of all material respects and does not contain any untrue statement of a material fact.liens, encumbrances, equities or claims;
(kd) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to, to or that which has constituted or which might reasonably be reasonably expected to, to cause or result in stabilization or manipulation of the price of any security of the Common Stock Company to facilitate the sale or resale of the Shares.;
(le) Such Selling Stockholder has not distributed and will not distributeTo the extent that any statements or omissions made in the Registration Statement, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein, such Preliminary Prospectus and the Registration Statement. Any certificate signed Statement did not, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus, when they become effective or are filed with the Commission, as the case may be, and will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(f) In 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 deliver to you prior to or at the First Time of Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof);
(g) Certificates in negotiable form 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 John B. Sanfilippo & Son, Inc., as custodian (the "Custodian"), and su▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇lder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the "Power of Attorney"), appointing the persons indicated in Schedule II hereto, and each of them, as such Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such 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
(h) 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 irrevocable to the extent provided thereunder, subject to the terms and conditions of this Agreement; 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, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if 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 or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of a the Selling Stockholder Stockholders, subject to and delivered in accordance with, the terms and conditions of this Agreement and of the Custody Agreements; and actions taken by the Attorneys-in-Fact pursuant to the Underwriter or to counsel for the Underwriter 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 Underwriter as to Custodian, the matters covered therebyAttorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Sources: Underwriting Agreement (Sanfilippo John B & Son Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof Underwriters (except to the extent the applicability of any representation and warranty is limited to the ▇▇▇▇▇▇ Selling Stockholders and/or the Other Selling Stockholders, in which case such representation and warranty shall be limited to the ▇▇▇▇▇▇ Selling Stockholders and/or the Other Selling Stockholders, as of the Closing Date applicable) that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation or on behalf of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold (i) The execution and delivery by such Selling Stockholder are subject to of, and the interests performance by such Selling Stockholder of its obligations under, this Agreement will not violate any provision of applicable law, or the Underwriter and that the obligations certificate of incorporation or by-laws of such Selling Stockholder hereunder shall not be terminated(if such Selling Stockholder is an entity), except as provided in this Agreementor any agreement or other instrument binding upon such Selling Stockholder or any judgment, by order or decree of any act of governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by operation such Selling Stockholder of law or its obligations under this Agreement, except such as may be required by the occurrence securities or Blue Sky laws of any other eventthe various states in connection with the offer and sale of the Shares.
(cii) Such The execution and delivery by such ▇▇▇▇▇▇ Selling Stockholder is and such Other Selling Stockholder of, and the lawful owner performance by such ▇▇▇▇▇▇ Selling Stockholder and such Other Selling Stockholder of its obligations under, the Custody Agreement signed by such ▇▇▇▇▇▇ Selling Stockholder and such Other Selling Stockholder and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the deposit of the Shares to be sold by such ▇▇▇▇▇▇ Selling Stockholder hereunder andand such Other Selling Stockholder (the “Custody Agreement”) will not violate any provision of applicable law, or the certificate of incorporation or by-laws of such ▇▇▇▇▇▇ Selling Stockholder or such Other Selling Stockholder (if such ▇▇▇▇▇▇ Selling Stockholder or such Other Selling Stockholder is an entity), or any agreement or other instrument binding upon sale such ▇▇▇▇▇▇ Selling Stockholder or such Other Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such ▇▇▇▇▇▇ Selling Stockholder or such Other Selling Stockholder, and delivery no consent, approval, authorization or order of, and payment foror qualification with, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, agency is required for the execution, delivery and performance by such ▇▇▇▇▇▇ Selling Stockholder or such Other Selling Stockholder of this its obligations under the Custody Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under by the state securities laws, the blue sky or Blue Sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. various states in connection with the purchase offer and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) 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.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Wesco Aircraft Holdings, Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and constitutes the legal[—], valid and binding obligation of such Selling Stockholderas Custodian, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject relating to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner deposit of the Shares to be sold by such Selling Stockholder hereunder and(the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Selling Stockholder’s attorneys-in-fact to the extent set forth therein, upon sale relating to the transactions contemplated hereby and delivery ofby the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, and payment for, such Shares as provided herein, or the certificate of incorporation or by-laws of such Selling Stockholder (if such Selling Stockholder is a corporation), or any agreement or other instrument binding upon such Selling Stockholder (except where contravention of any such agreement or instrument would not, individually or in the aggregate, have a material effect on the ability of the Selling Stockholders to consummate the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney (a “Selling Stockholder Material Adverse Effect”)) or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may be required by the Securities Act or Blue Sky laws of the various states in connection with the offer and sale of the Shares and except where the failure to obtain such consents, approvals or authorizations would not have a Selling Stockholder Material Adverse Effect.
(c) Such Selling Stockholder has, and on the Closing Date will convey have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to the Underwriter good and marketable title to be sold by such Shares, Selling Stockholder free and clear of all voting trust arrangementssecurity interests, pledgesclaims, liens, equities or other encumbrances and the legal right and power, except for any liens, encumbrances, equities, equities or claims and security interests whatsoeverarising under the Custody Agreement or otherwise in favor of the Underwriters.
(d) Such The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Stockholder has full legal right and power, are valid and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all binding agreements of such Selling Stockholder.
(e) Upon payment for the Shares which may to be sold by such Selling Stockholder pursuant to this Agreement Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to comply securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the executionStockholder may assume that when such payment, delivery and performance crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by such Selling Stockholder DTC, in each case on the Company’s share registry in accordance with its certificate of this Agreementincorporation, or consummation by such Selling Stockholder bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the transactions UCC, claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC, and if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto, then all holders will share pro rata in the Shares then held by DTC or such Selling Stockholder contemplated herein, except such as securities intermediary and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been obtained under made pursuant to the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the UnderwriterUCC.
(f) The executionSuch Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, delivery and performance has no current, actual knowledge of this Agreement by any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole, it being understood that such Selling Stockholder and consummation of has made no independent inquiry or investigation with respect to any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreementmatters.
(i) Except The Registration Statement, when it became effective, did not contain and, as disclosed in amended or supplemented, if applicable, will not, as of the Prospectusdate of such amendment or supplement, there are no contractscontain 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, agreements or understandings between such Selling Stockholder (ii) the Time of Sale Prospectus does not, and any person that would give rise to a valid claim against at the Company or time of each sale of the Underwriter for a brokerage commission, finder’s fee or other like payment Shares in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and offering when the Prospectus is truenot yet available to prospective purchasers and at the Closing Date (as defined in Section 5), correct the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and complete in all material respects and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact.
(kfact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 2(g) Such do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided that the representations and warranties set forth in this Section 2(g) are limited in all respects to statements or omissions made in reliance upon information relating to the 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.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty provided by such Selling Stockholder to the Underwriter Company in writing expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
(h) To the extent such Selling Stockholder is a Significant Selling Stockholder, such Selling Stockholder has executed a “lock-up” agreement, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, that is in full force and effect as to of the matters covered therebydate hereof and shall be in full force and effect as of the Closing Date and each Option Closing Date, as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (INPHI Corp)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder has full rightof, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Letter to the Transfer Agent (as defined below) and the power and authority of attorney appointing certain individuals as such Selling Stockholder's attorneys in fact to execute and deliver this Agreement, to perform its obligations hereunder Agreement and to consummate the transactions documents and certificates contemplated hereby (the "Power of Attorney") will not violate (i) any provision of the certificate of incorporation or by-laws (or equivalent constituent documents) of such Selling Stockholder, or (ii) except in each case for violations that would not materially and adversely affect the consummation by such Selling Stockholder contemplated by this Agreement. This Agreement and of the transactions contemplated by this Agreement have been duly Agreement, any provision of law applicable to such Selling Stockholder, any agreement or other instrument binding upon such Selling Stockholder or any property of such Selling Stockholder or to which such Selling Stockholder is a party or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder; and validly authorized no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the execution, delivery or performance of this Agreement, the Letter to the Transfer Agent and the Power of Attorney by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except such as enforceability may be limited required by applicable bankruptcy, insolvency, reorganization, moratorium the securities or similar Blue Sky laws affecting creditors’ rights generally of the various states in connection with the offer and except as enforceability may be subject to general principles sale of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)the Shares.
(bc) Such Selling Stockholder agrees that has, and on the Closing Date will have, the corporate power to enter into this Agreement, the Letter to the Transfer Agent and the Power of Attorney, to sell, transfer and deliver the Shares to be sold by such Selling Stockholder are subject and perform its obligations under this Agreement, the Letter to the interests Transfer Agent or the Power of Attorney.
(d) Such Selling Stockholder has delivered a letter to UMB Bank, N.A., (the Underwriter "Transfer Agent"), substantially in the form attached as Exhibit A hereto ("Letter to the Transfer Agent"), and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act has received the transfer agent's signed acknowledgment of such Selling Stockholder, by operation of law or by letter and has not received any notice that the occurrence of any other eventtransfer agent does not intend to comply with the instructions therein.
(ce) Such Selling Stockholder is the lawful record owner of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares is not aware of any "adverse claims" (within the meaning of Section 8-105 of the Uniform Commercial Code as provided herein, adopted by the State of New York (the "UCC") that may be asserted against such Selling Stockholder will convey to the Underwriter good and marketable title with respect to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The executionRegistration Statement, delivery when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and performance the Prospectus does not contain and, at the Closing Date, the Prospectus as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Agreement paragraph apply only to statements or omissions in the Registration Statement or Prospectus based upon information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholderexpressly for use therein.
(g) Such The sale of such Selling Stockholder's Shares pursuant to this Agreement is not prompted by any material, non-public information in such Selling Stockholder's possession concerning the Company that would cause such sale to constitute a violation by 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 of Rule 10b-5 promulgated under the Registration Statement or included in the offering of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with)Exchange Act.
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) Such Selling Stockholder has not taken taken, and will not take, directly or indirectly, any action designed to, or that which might reasonably be reasonably expected to, cause or result in any stabilization or manipulation of the price of any security of the Common Stock Company to facilitate the sale or resale of the Shares.
(l) Such Shares pursuant to the distribution contemplated by this Agreement and, other than as permitted by the Securities Act, such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, distribute any prospectus or other offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered therebyShares.
Appears in 1 contract
Sources: Underwriting Agreement (Sprint Corp)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders hereby represents and warrants, severally (but only as to itself and not as jointly, to any other Selling Stockholder) represents and warrants to, and agrees with, the each Underwriter as of the date hereof and as of the Closing Date thatfollows:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver Each of this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Lock-Up Agreement has been duly and validly authorized, executed and delivered by such or on behalf of the Selling Stockholder and, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes the legal, valid and legally binding obligation agreement of such the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally and except as enforceability may be subject to by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)equitable principles.
(b) Such The execution and delivery by the Selling Stockholder agrees that of this Agreement and the Shares to be sold performance by such the Selling Stockholder are subject to of its obligations under this Agreement (i) will not contravene any provision of applicable law, statute, regulation or filing or any agreement or other instrument binding upon the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminatedor any judgment, except as provided in this Agreementorder or decree of any governmental body, by any act of such agency or court having jurisdiction over the Selling Stockholder, by operation (ii) does not require any consent, approval, authorization or order of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from registration or filing with any judicial, regulatory or other legal court or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated hereinhaving jurisdiction over it, except such as have been obtained under the Securities Act and such as may be required under by the state securities laws, the blue sky Blue Sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. various states in connection with the purchase offer and distribution sale of such Selling Stockholder’s the Shares by the Underwriter.
(f) The execution, delivery and performance of which have been or will be effected in accordance with this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder (iii) will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 the Selling Stockholder pursuant to any law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such the Selling Stockholder is a party or bound, by which the Selling Stockholder may be bound or to which any of the property or assets of such the Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(gc) Such The Selling Stockholder does not have has, and on the Firm Shares Closing Date will have, valid title to the Shares to be sold by the Selling Stockholder free and clear of any registration lien, claim, security interest or other similar rights to have encumbrance, including any equity or debt securities registered for sale by restriction on transfer (other than the Company under the Registration Statement or included in the offering interests of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied withseveral Underwriters under this Agreement).
(hd) Such The Selling Stockholder does not has, and on the Firm Shares Closing Date will have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive legal right, co-sale right or right of first refusal or other similar right power and authorization, and any approval required by law (except such additional steps as may be necessary to purchase any of qualify the Shares that are to be sold by any other it for public offering by the Underwriters under the state securities or Blue Sky laws), to
(e) Assuming the Underwriters are "protected purchasers" (as defined under Section 8-303 of the New York Commercial Code, upon delivery by the Selling Stockholder of the certificates for the Shares to the Underwriter be sold by it pursuant to this AgreementAgreement against payment therefor by the several Underwriters as provided hereunder, the several Underwriters will acquire such Shares free of any "adverse claims" within the meaning of Section 8-102 of the New York Commercial Code.
(if) Except as disclosed All information relating to the Selling Stockholder furnished in writing by the Selling Stockholder expressly for use in the ProspectusRegistration Statement and Prospectus is, there are no contractsand on each Closing Date will be, agreements true, correct and complete in all material respects, and does not, and on each Closing Date will not, contain any untrue statement of a material fact or understandings between such omit to state any material fact necessary to make the information therein, in light of the circumstances under which it was made, not misleading. The Company and the Underwriters acknowledge that the statements, if any, relating to the Selling Stockholder under the captions "Principal and any person that would give rise to a valid claim against Selling Stockholders" and "Certain Transactions" in the Company or Registration Statement and the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All Prospectus constitute the only information furnished by or on behalf of such Selling Stockholder in writing for use inclusion in the Registration Statement or Prospectus.
(g) The Selling Stockholder has reviewed the Registration Statement and Prospectus and, although the Prospectus is trueSelling Stockholder has not independently verified the accuracy or completeness of all the information contained therein, correct and complete in all material respects and does not contain nothing has come to the attention of the Selling Stockholder that would lead the Selling Stockholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material factfact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date, the Prospectus contained, and on each Closing Date contains, any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) Such The sale of Shares by the Selling Stockholder pursuant to this Agreement is not prompted by the Selling Stockholder's knowledge of any material non-public information concerning the Company or its Subsidiaries which is not set forth in the Prospectus.
(i) The Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to, to or that might reasonably be reasonably expected to, to cause or result in stabilization or manipulation of the price of any security of the Common Stock Company to facilitate the sale or resale of the Shares.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder Stockholder, if an entity, has full right, power been duly organized and authority to execute is validly existing and deliver this Agreement, to perform in good standing as an entity in its obligations hereunder and to consummate the transactions jurisdiction of such Selling Stockholder contemplated by this Agreement. formation.
(b) This Agreement and the transactions contemplated by this Power of Attorney and Custody Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by such Selling Stockholder and constitutes the legal, is a valid and binding obligation agreement of such Selling Stockholder, Stockholder enforceable in accordance with its terms, except as enforceability may be limited by applicable subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or and similar laws of general applicability relating to or affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other eventprinciples.
(c) Such Selling Stockholder is has, and on the lawful owner Closing Date will have, good and marketable title to the Shares, free and clear of any mortgage, pledge, lien, encumbrance, security interest or equity whatsoever, and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by such Selling Stockholder on such Closing Date; and upon the delivery of and payment for the Shares in accordance with this Agreement and the Underwriting Agreement, the Underwriters will acquire valid and unencumbered title to the Shares.
(d) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement and the Power of Attorney and Custody Agreement signed by such Selling Stockholder relating to the deposit of the Shares to be sold by such Selling Stockholder hereunder andand the Power of Attorney appointing L▇ ▇▇▇▇▇▇, upon sale the Company’s Chief Executive Officer, as such Selling Stockholder’s attorney-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and delivery ofby the Registration Statement will not contravene any provision of applicable law, and payment for, such Shares as provided herein, or the organizational documents of such Selling Stockholder will convey to (if such Selling Stockholder is an entity), or any agreement or other instrument binding upon such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no governmental authorization of any government agency is required for the Underwriter good performance by such Selling Stockholder of its obligations under this Agreement or the Power of Attorney and marketable title to Custody Agreement of such SharesSelling Stockholder, free except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and clear sale of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoeverthe Agreement.
(de) Such The statements in the sections entitled “Beneficial Ownership of Certain Beneficial Owners, Management, and Selling Stockholders” relating to such Selling Stockholder has full legal right in the Prospectus and powerthe Pricing Prospectus did not and do not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, and all authorizations and approvals required by lawin the light of the circumstances under which they were made, to enter into this Agreement, to sell, transfer and deliver all not misleading.
(f) The sale of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with is not prompted by any judicial, regulatory or other legal or governmental agency or body material information concerning the Company or any third party, foreign or domestic, of its subsidiaries that is required for not set forth the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling StockholderPricing Prospectus.
(g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company such Selling Stockholder or the any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(kh) Such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to, to or that might has constituted or that would reasonably be reasonably expected to, to cause or result in the stabilization or manipulation of the price of any security of the Common Stock Company to facilitate the sale or resale of the Shares.
(i) Upon initiation of payment for the Shares sold by such Selling Stockholder under the Power of Attorney and Custody Agreement and this Agreement and the delivery by such Selling Stockholder to DTC (as defined below) or its agent of the Shares in book entry form to a securities account maintained by the Underwriters at DTC or its nominee, and payment therefor in accordance with this Agreement, the Underwriters will acquire a securities entitlement (within the meaning of Section 8 of the Uniform Commercial Code (the “UCC”)) with respect to such Shares, and no action based on an “adverse claim” (as defined in UCC Section 8) may be asserted against the Underwriters with respect to such security entitlement if, at such time, the Underwriters do not have notice of any adverse claim within the meaning of UCC Section 8.
(j) Such Selling Stockholder has previously provided a selling stockholder questionnaire (the “Questionnaire”) that was completed by such Selling Stockholder and submitted to the Company on or before the date hereof and it does not, and as of the Closing Date will not, contain any untrue statement of material fact nor does it omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(k) Except as disclosed in the Pricing Prospectus or the Questionnaire, such Selling Stockholder has no affiliations or associations with any member of the FINRA; and none of the proceeds received by such Selling Stockholder from the sale of the Shares to be sold by such Selling Stockholder hereunder will be paid to a member of the FINRA or any affiliate (or person “associated with,” as such terms are used in the rules of the FINRA).
(l) No transaction, stamp, capital or other issuance, registration, transaction, transfer or withholding taxes or duties are payable by or on behalf of the Underwriters in connection with (i) the sale and delivery of the Shares by such Selling Stockholder, the issuance of such Shares by the Depositary, and the delivery of such Shares to or for the account of the Underwriters, (ii) the purchase from such Selling Stockholder and the initial sale and delivery by the Underwriters of the Shares to purchasers thereof, or (iii) the execution and delivery of this Agreement or the Power of Attorney and Custody Agreement.
(m) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the latest Closing Date and the completion of the Underwriter’s Underwriters’ distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than Stockholders, including any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a free writing prospectus.
(n) Such Selling Stockholder and delivered does not have, or has waived prior to the Underwriter date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to counsel for purchase any of the Underwriter shall be deemed Shares that are to be a representation and warranty sold by such the Company or any other Selling Stockholder to the Underwriter Underwriters pursuant to this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital shares, right, warrants, options or other securities from the Company, other than those disclosed in the Questionnaire and as presented in the Pricing Prospectus and the Prospectus.
(o) The Registration Statement, as it relates to such Selling Stockholder, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the matters covered therebystatements therein not misleading, (ii) the Pricing Prospectus, as it relates to such Selling Stockholder, does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date, the Pricing Prospectus, as then amended or supplemented by the Company, if applicable, as it relates to such Selling Stockholder, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus, as it relates to such Selling Stockholder, does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(p) The choice of law set forth in Section 14 hereof as the governing law of this Agreement is a valid choice of law and will be recognized and given effect to in any action brought before a court of competent jurisdiction in jurisdiction in which such Selling Stockholder is organized and has its principal place of business if not a natural person or in the jurisdiction in which such person resides if a natural person. The courts of any such jurisdiction will recognize as a valid judgment, a final and conclusive judgment in personam obtained in U.S. courts against such Selling Stockholder based upon this Agreement.
Appears in 1 contract
Sources: Underwriting Agreement (China Intelligent Lighting & Electronics, Inc.)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders, severally (but only as to itself and not as jointly, represent and warrant and covenant to any other Selling Stockholder) represents the Placement Agent and warrants to, and agrees with, the Underwriter as of the date hereof and as of the Closing Date Company that:
(a) Such The Selling Stockholder has has, and will have, at the Closing Date, good and valid title to the Selling Stockholder Shares to be sold by the Selling Stockholder, free of any liens, encumbrances, equities and claims, and full right, power and authority to execute effect the sale and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions delivery of such Selling Stockholder contemplated by Shares, and upon the delivery of and payment for such Selling Stockholder Shares pursuant to this Agreement, good and valid title thereto, free of any liens, security interests, encumbrances, charges or equitable or other claims, will be transferred to the Investors acquiring such Selling Stockholder Shares.
(b) Certificates in negotiable form for the Selling Stockholder Shares to be sold by the Selling Stockholder hereunder have been placed in custody with the Transfer Agent, in its capacity as Custodian (the “Custodian”), for delivery pursuant to the terms of this Agreement, under a Power of Attorney and a Custody Agreement; and the Selling Stockholder Shares represented by the certificates so held in custody for the Selling Stockholder are subject to the interests, if any, of the Investors. This Agreement, the Custody Agreement and the transactions contemplated by this Selling Stockholder Lock-Up Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by such Selling Stockholder Stockholder, and constitutes are the legal, valid and binding obligation agreements of such the Selling Stockholder, enforceable in accordance with its their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws affecting creditors’ rights generally and except as enforceability may be subject to by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity equity, and except insofar as rights to indemnification and contribution contained herein may be limited by federal or at law)state securities laws or related public policy.
(bc) Such The execution and delivery of this Agreement, the Custody Agreement, and the Selling Stockholder agrees that Lock-Up Agreement, the sale and delivery of the Selling Stockholder Shares to be sold by such the Selling Stockholder are subject to and the interests consummation of the Underwriter transactions contemplated herein and that therein, and compliance by the obligations of such Selling Stockholder with its obligations hereunder shall and thereunder do not be terminatedand will not, except as provided whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in this Agreement, by any act of such Selling Stockholder, by operation of law the creation or by the occurrence imposition of any other event.
(c) Such tax, lien, charge or encumbrance upon the Selling Stockholder is the lawful owner of the Shares to be sold by such the Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such or any property or assets of the Selling Stockholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder may be bound, or to which any of the property or assets of the Selling Stockholder is subject, nor will convey to such action result in any violation of the Underwriter good and marketable title to such Sharesprovisions of the charter or by-laws or other organizational instrument of the Selling Stockholder, free and clear if applicable, or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of all voting trust arrangementsany government, pledgesgovernment instrumentality or court, liensdomestic or foreign, encumbrances, equities, claims and security interests whatsoeverhaving jurisdiction over the Selling Stockholder or any of its properties.
(d) Such The Selling Stockholder has full the legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, the Custody Agreement and the Selling Stockholder Lock-Up Agreement and to sell, transfer and deliver all of the Selling Stockholder Shares which may to be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(ge) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) Such The Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to, to or that which might reasonably be reasonably expected to, to cause or result in a violation of Section 5 of the Act or Regulation M under the Act or in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the SharesStock.
(lf) Such No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the completion securities or Blue Sky laws of the Underwriter’s distribution of the Shares, any offering material jurisdiction in connection with the offering purchase and sale distribution of the Selling Stockholder Shares by the Selling Stockholders Placement Agent and such other than any Preliminary Prospectusapprovals as have been obtained.
(g) The information, the Prospectus or if any, in the Registration Statement. Any certificate signed , any Preliminary Prospectus and the Prospectus that relates to the Selling Stockholder, and that has been furnished to the Company in writing by the Selling Stockholder expressly for use therein does not, and will not on the date of the execution of this Agreement or on behalf the Closing Date contain any untrue statement of a Selling Stockholder and delivered material fact or omit to the Underwriter or to counsel for the Underwriter shall be deemed state any material fact required to be a representation and warranty by such Selling Stockholder stated therein or necessary to make the Underwriter as to statements therein, in the matters covered therebylight of the circumstances under which they were made, not misleading.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders, severally (but only as to itself and not as to any other Selling Stockholder) jointly, represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver enter into this Agreement, to perform its obligations hereunder the custody agreement and to consummate power of attorney (the transactions "Custody Agreement"). Such Selling Stockholder has duly executed and delivered this Agreement. The Custody Agreement has been duly executed and delivered on behalf of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Custody Agreement have been duly constitutes the valid and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by binding agreement of such Selling Stockholder and constitutes the legal, valid and binding obligation of enforceable against such Selling Stockholder, enforceable Stockholder in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that has full right, power and authority to sell, transfer, assign and deliver the Shares to be being sold by such Selling Stockholder are subject hereunder. Immediately prior to the interests delivery of the Underwriter Shares being sold by such Selling Stockholder, such Selling Stockholder was the sole registered owner of such Shares and had good and valid title to such Shares, free and clear of all adverse claims as defined in Section 8-302 of the Uniform Commercial Code and, upon registration of such Shares in the names of the Underwriters or their nominees, assuming that such purchasers purchased such Shares in good faith without notice of any adverse claims as defined in Section 8-302 of the obligations Uniform Commercial Code, such purchasers will have acquired all the rights of such Selling Stockholder hereunder shall not in such Shares free of any adverse claim, any lien in favor of the Company or restrictions on transfer imposed by the Company.
(c) The performance of this Agreement and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not, with the giving of notice or the passage of time or both, result in a breach or violation of any of the terms or provisions of or, to the best knowledge of such Selling Stockholder after due inquiry, constitute a default under any statute, rule or regulation applicable to such Selling Stockholder, or any indenture, mortgage, deed of trust, note or other material agreement or instrument to which such Selling Stockholder is a party or by which it is bound, or any judgment, order or decree of any court or governmental agency or body having jurisdiction over such Selling Stockholder or any of its properties, or, if such Selling Stockholder is a corporation, the certificate or articles of incorporation or bylaws of such Selling Stockholder.
(d) Without the prior written consent of Morg▇▇ ▇▇▇n▇▇▇ & ▇o. Incorporated ("Morg▇▇ ▇▇▇n▇▇▇") ▇n behalf of the Underwriters, such Selling Stockholder will not, during the period commencing on the date hereof and ending 180 days after the date of the final Prospectus, (A) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer of dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (whether such shares or any such securities are now owned by the undersigned or are hereafter acquired), or (B) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (A) or (B) above is to be terminatedsettled by delivery of Common Stock or such other securities, except in cash or otherwise.
(e) Such Selling Stockholder has duly executed and delivered the Custody Agreement (A) appointing _________________ and _______________, and each of them, as provided in attorney-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement, by any act Agreement on behalf of such Selling Stockholder, by operation of law or by to authorize the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner delivery of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, otherwise to act on behalf of such Selling Stockholder will convey to in connection with the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required transactions contemplated by law, to enter into this Agreement, and (B) appointing the Company, as Custodian, to sell, transfer and deliver all of hold in custody for delivery under this Agreement certificates for the Shares which may to be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(ef) No Consent ofconsent, from approval, authorization or with order of any judicial, regulatory or other legal court or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated hereinby this Agreement, except such as have been obtained under the Securities Act and such as may be required by the NASD or under the state Act or the securities laws, the blue sky or Blue Sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s the Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling StockholderUnderwriters.
(g) Such Selling Stockholder does has not have (A) taken, directly or indirectly, any registration action designed to cause or other similar rights result in, or that has constituted or might reasonably be expected to have constitute, the stabilization or manipulation of the price of any equity or debt securities registered for sale by security of the Company under to facilitate the sale or resale of the Shares or (B) since the filing of the Registration Statement (1) sold, bid for, purchase or included in paid anyone any compensation for soliciting purchases of, the offering Shares or (2) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with)Company.
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished or to be furnished to the Company by or on behalf of such Selling Stockholder in writing for use in connection with the preparation of the Registration Statement and the Prospectus Prospectus, insofar as it relates to such Selling Stockholder, is true, or will be true and correct and complete in all respects and, with respect to the Registration Statement, does not and will not contain an untrue statement of a material respects fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, with respect to the Prospectus, does not and does will not contain any untrue statement of a material factfact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ki) Such Nothing has come to such Selling Stockholder's attention that has caused such Selling Stockholder has to believe that (A) at the time the Registration Statement becomes effective and at the date hereof, it will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (B) the Prospectus, at the time it becomes effective and as of the date hereof and at the Closing Date, the Prospectus will include any untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing representations, warranties and agreements in this subsection (ix) shall not apply to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Underwriter, directly or through the Representatives, specifically for use in the preparation thereof. Each Selling Stockholder agrees that the Shares represented by the certificates held in custody under the Custody Agreement are for the benefit of and coupled with and subject to the interests of the Underwriters, the other Selling Stockholders and the Company hereunder, and that the arrangement for such custody and the appointment of the Attorneys-in-Fact are irrevocable; that the obligations of such Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any such Selling Stockholders, or any other event, that if any of such Selling Stockholders should die or become incapacitated or any other event occur, before the delivery of the Shares hereunder, certificates for the Shares to be sold by such Selling Stockholders shall be delivered on behalf of such Selling Stockholders in accordance with the terms and conditions of this Agreement and the Custody Agreement, and action taken and will by the Attorneys-in-Fact or any of them under the Power of Attorney shall be as valid as if such death, incapacity or other event had not occurred, whether or not the Custodian, the Attorneys-in-Fact or any of them shall have notice of such death, incapacity or other event. Each Selling Stockholder further agrees that neither such Selling Stockholder nor any of its officers, directors or affiliates will: (a) take, directly or indirectly, prior to the termination of the underwriting syndicate contemplated by this Agreement, any action designed toto cause or to result in, or that might reasonably be reasonably expected toto constitute, cause or result in the stabilization or manipulation of the price of any securities of the Common Stock Company to facilitate the sale or resale of the Shares.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution any of the Shares; (b) sell, bid for, purchase or pay anyone any offering material in connection with compensation for soliciting purchases of, the offering and sale Stock; or (c) pay to or agree to pay any person any compensation for soliciting another to purchase any other securities of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered therebyCompany.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and constitutes the legal[•], valid and binding obligation of such Selling Stockholderas Custodian, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject relating to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner deposit of the Shares to be sold by such Selling Stockholder hereunder and(the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Selling Stockholder’s attorneys-in-fact to the extent set forth therein, upon sale relating to the transactions contemplated hereby and delivery ofby the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, and payment for, such Shares as provided herein, or the certificate of incorporation or by-laws of such Selling Stockholder (if such Selling Stockholder is a corporation), or any agreement or other instrument binding upon such Selling Stockholder (except where contravention of any such agreement or instrument would not, individually or in the aggregate, have a material effect on the ability of the Selling Stockholders to consummate the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney (a “Selling Stockholder Material Adverse Effect”)) or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares and except where the failure to obtain such consents, approvals or authorizations would not have a Selling Stockholder Material Adverse Effect.
(c) Such Selling Stockholder has, and on the Closing Date will convey have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to the Underwriter good and marketable title to be sold by such Shares, Selling Stockholder free and clear of all voting trust arrangementssecurity interests, pledgesclaims, liens, encumbrances, equities, claims equities or other encumbrances and security interests whatsoever.
(d) Such Selling Stockholder has full the legal right and power, and all authorizations authorization and approvals approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver all the Shares to be sold by such Selling Stockholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Stockholder and are valid and binding agreements of such Selling Stockholder.
(e) [Delivery of the Shares which may to be sold by such Selling Stockholder and payment therefor pursuant to this Agreement will pass valid title to such Shares, free and clear of any adverse claim within the meaning of Section 8-102 of the UCC, to each Underwriter who has purchased such Shares without notice of an adverse claim.]1 [Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to comply securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the executionStockholder may assume that when such payment, delivery and performance crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by such Selling Stockholder DTC, in each case on the Company’s share registry in accordance with its certificate of this Agreementincorporation, or consummation by such Selling Stockholder bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the transactions UCC and (z) appropriate entries to the accounts of such Selling Stockholder contemplated herein, except such as the several Underwriters on the records of DTC will have been obtained under made pursuant to the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the UnderwriterUCC.]
(f) The execution, delivery and performance of this Agreement by such Such Selling Stockholder has no reason to believe that the representations and consummation warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder Sale Prospectus or the fulfillment of 1 To be used if Shares are to be delivered by the terms hereof by such Selling Stockholder will not (A) conflict with, result Stockholders in a breach or violation ofcertificated form endorsed to the Underwriters. Prospectus that has had, or constitute may have, a default (or an event that with notice or lapse of timematerial adverse effect on the Company and its subsidiaries, or both, would constitute taken as 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such whole.2 Such Selling Stockholder is party or bound, or to which not prompted by any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(g) Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by information concerning the Company under the Registration Statement or included its subsidiaries which is not set forth in the offering Time of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Sale Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the sell its Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(g) (i) Except The Registration Statement, when it became effective, did not contain and, as disclosed in amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Prospectusstatements therein not misleading, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(jii) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is truecomply and, correct and complete as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material factfact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 2(g) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided that the representations and warranties set forth in this Section 2(g) are limited in all respects to statements or omissions made in reliance upon information relating to the Selling Stockholder provided by the Selling Stockholder to the Company in writing expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
(kh) Such Selling Stockholder has not taken executed a “lock-up” agreement, substantially in the form of Exhibit A hereto, relating to sales and will not takecertain other dispositions of shares of Common Stock or certain other securities, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result is in stabilization or manipulation full force and effect as of the price of the Common Stock to facilitate the sale or resale of the Shares.
(l) Such Selling Stockholder has not distributed date hereof and will not distribute, prior to the later shall be in full force and effect as of the Closing Date and the completion Date. 2 TBD pending determination of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered thereby.Sellers
Appears in 1 contract
Sources: Underwriting Agreement (INPHI Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally (but only as Stockholder, solely with respect to itself and not as to any other Selling Stockholder) , represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and constitutes the legalComputershare Trust Company, valid and binding obligation of such Selling StockholderN.A., enforceable in accordance with its termsas Custodian, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject relating to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner deposit of the Shares to be sold by such Selling Stockholder hereunder and(the “Custody Agreement”) and the Power of Attorney 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 (the “Power of Attorney”) will not contravene any provision of (i) applicable law (provided no representation is made with respect to compliance with federal, state or other applicable securities or antifraud laws (collectively, “Securities Laws”)), (ii) the certificate of incorporation or by-laws or similar organizational documents of such Selling Stockholder (if such Selling Stockholder is a corporation, limited liability company, partnership or other similar entity), (iii) any agreement or other instrument binding upon sale such Selling Stockholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder except in the case of clause (iii) as would not, individually or in the aggregate, have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement and delivery the Power of Attorney, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, and payment forexcept such as may be required under the Securities Laws in connection with the offer and sale of the Shares, except for such consents, approvals, authorizations, orders, or qualifications as would not, individually or in the aggregate, have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement and the Power of Attorney.
(c) With respect to any Shares as provided hereinto be sold by such Selling Stockholder that are outstanding on the date hereof, such Selling Stockholder has, and with respect to such Shares and any Additional Shares to be sold by such Selling Stockholder upon the exercise of options, on each Closing Date, such Selling Stockholder has or will convey to the Underwriter good and marketable title to have fully paid for such Shares, will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, such Shares free and clear of all voting trust arrangementssecurity interests, pledgesclaims, liens, encumbrances, equities, claims equities or other encumbrances and security interests whatsoever.
(d) Such Selling Stockholder has full the legal right and power, and all authorizations authorization and approvals approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver all of the Shares which may to be sold by such Selling Stockholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Stockholder and are valid and binding agreements of such Selling Stockholder, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to comply securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the executionStockholder may assume that when such payment, delivery and performance crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by such Selling Stockholder DTC, in each case on the Company’s share registry in accordance with its certificate of this Agreementincorporation, or consummation by such Selling Stockholder bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the transactions UCC and (z) appropriate entries to the accounts of such Selling Stockholder contemplated herein, except such as the several Underwriters on the records of DTC will have been obtained under made pursuant to the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the UnderwriterUCC.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Time of Sale Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company such Selling Stockholder or the any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement offer and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) 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.
(lg) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, distribute any prospectus or other offering material in connection with the offering offer and sale of the Shares.
(h) Such Selling Stockholder has executed a “lock-up” agreement, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, that is in full force and effect as of the date hereof and shall be in full force and effect as of the Closing Date.
(i) Such Selling Stockholder is not prompted to sell its Shares pursuant to this Agreement by any material information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(1) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Selling Stockholders other than Company, if applicable, will not, contain any Preliminary untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (3) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (4) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the Registration Statement. Any certificate signed statements therein, in the light of the circumstances under which they were made, not misleading, provided that all of the representations and warranties set forth in this paragraph 2(j) are limited exclusively to statements or omissions of material facts made in reliance upon and in conformity with information relating to such Selling Stockholder furnished in writing by or on behalf of a such Selling Stockholder and delivered expressly for use in the Registration Statement, the Time of Sale Prospectus, any broadly available road show, the Prospectus or any amendments or supplements thereto, taking into account any written updates to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty such information provided by such Selling Stockholder prior to the Underwriter as date of the Time of Sale Prospectus, it being understood and agreed that the only information furnished by such Selling Stockholder consists of the name of such Selling Stockholder, the number of offered Shares and the address and other information with respect to such Selling Stockholder (excluding percentages) that appear in the matters covered therebytable (and corresponding footnotes) under the caption “Principal and Selling Stockholders” in the Prospectus (the “Selling Stockholder Information”).
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally (but only as to itself and not as to any other Selling Stockholder) jointly, represents and warrants to, and agrees with, the to each Underwriter as of the date hereof and as of the Closing Date that:
(a) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder and, upon sale pursuant to this Agreement and delivery ofhas, and payment foron each of the Closing Date and the Option Closing Date will have, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable clear title to such Shares, free and clear of all voting trust arrangements, pledgesrestrictions on transfer, liens, encumbrances, equitiessecurity interests, equities and claims and security interests whatsoever.
(db) Such Selling Stockholder has has, and on each of the Closing Date and the Option Closing Date will have, full legal right right, power and powerauthority, and all authorizations authorization and approvals approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and ___, as custodian (the "CUSTODIAN"), relating to the deposit of the Shares to be sold by such 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 "POWER OF ATTORNEY") and to sell, assign, transfer and deliver all of the Shares which 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 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, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting the enforcement of creditors' rights.
(e) 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, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting the enforcement of creditors' rights, 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 and to comply with such Selling Stockholder’s other obligations hereunderAgreement.
(ef) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required Upon delivery of and payment for the execution, delivery and performance Shares to be sold by such Selling Stockholder of pursuant to this Agreement, or consummation by good and clear title to such Selling Stockholder Shares will pass to the Underwriters, free of the transactions of such Selling Stockholder contemplated hereinall restrictions on transfer, except such as have been obtained under the Securities Act liens, encumbrances, security interests, equities and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriterclaims whatsoever.
(fg) 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 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 various states), (ii) conflict with or constitute a breach of any of the other transactions terms or provisions of, or a default under, the organizational documents of such Selling Stockholder contemplated herein by Stockholder, if such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will is not (A) conflict with, result in a breach or violation ofan individual, or constitute a default (or an event that with notice or lapse of timeany indenture, or bothloan agreement, would constitute a default) undermortgage, 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 law, statute, rule or regulation or the terms of any indenture lease or other agreement or instrument to which such Selling Stockholder is a party or bound, by which such Selling Stockholder or to which any of the property or assets of such Selling Stockholder is subject, bound or (Biii) result in violate or conflict with any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, applicable law or any rule, regulation, judgment, order, order or decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental body or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling or any property of such Selling Stockholder.
(g) 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 of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished Each certificate signed by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is true, correct and complete in all material respects and does not contain any untrue statement of a material fact.
(k) 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.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter Underwriters or to counsel for the Underwriter Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter Underwriters as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Ultimate Software Group Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder (or Specified Selling Stockholder, as applicable), severally (but only as to itself and not as to any other Selling Stockholder) jointly, represents and warrants to, to each Underwriter and agrees with, the Underwriter as of the date hereof and as of the Closing Date Company that:
(a) Such Specified Selling Stockholder has entered into a Power of Attorney (the “Power of Attorney”) and a Custody Agreement (the “Custody Agreement”) for the sale and delivery of the Shares to be sold by such Specified Selling Stockholder; and such Specified Selling Stockholder has full right, power and authority to execute and deliver enter into this Agreement, to perform its obligations hereunder the Power of Attorney and the Custody Agreement and to consummate sell, assign, transfer and deliver the transactions of Shares to be sold by such Specified Selling Stockholder contemplated by hereunder; this Agreement. This Agreement , the Power of Attorney and the transactions contemplated by this Custody Agreement have each been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Specified Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful record owner of the Shares to be sold by such Selling Stockholder hereunder and, upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriter good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, equities and claims and has duly endorsed such Shares in blank, and assuming that each Underwriter acquires its interest in the Shares it has purchased from such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (“UCC”)), each Underwriter that has purchased such Shares delivered on the Closing Date or the Additional Closing Date, as applicable, to DTC or other securities intermediary by making payment therefor as provided herein and that has had such Shares credited to the securities account or accounts of such Underwriter maintained with DTC or such other securities intermediary will have acquired a security interests whatsoeverentitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Shares purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-102 of the UCC) may be successfully asserted against such Underwriter under the UCC as in effect in the State of New York with respect to such Shares.
(c) Such Selling Stockholder has not taken, directly or indirectly, any action designed to or that would constitute or that might 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 Shares during the distribution of the Shares by the Underwriters.
(d) Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement, to sell, transfer and deliver Certificates in negotiable form representing all of the Shares which may to be sold by such Selling Stockholder pursuant (other than those to this Agreement be sold by the Specified Selling Stockholders) have been deposited with American Stock Transfer & Trust Company, LLC, the transfer agent for the Company’s Common Stock (the “Transfer Agent”). Such Selling Stockholder specifically agrees that the Shares represented by the certificates so deposited are subject to the interests of the Underwriters hereunder, and to comply with that the arrangements made by such Selling Stockholder’s Stockholder for such deposit will not be revoked prior to the earlier of the sales of such Shares hereunder or the expiration of the Underwriters’ option to purchase the Option Shares. Such Selling Stockholder specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law by the dissolution of such partnership, corporation or organization, or by the occurrence of any other obligations event. If any such partnership, corporation or similar organization should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement.
(e) No Consent ofconsent, from approval, authorization or with order of any judicial, regulatory or other legal court or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as may have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s the Shares by the UnderwriterUnderwriters and such other approvals as have been obtained.
(f) The execution, delivery and performance Neither the sale of this Agreement the Shares being sold by such Selling Stockholder and nor the consummation of any other of the other transactions of such Selling Stockholder herein contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, (i) any law applicable to such Selling Stockholder, (ii) certificate of formation; or result in the creation limited partnership agreement or imposition of any lienlimited liability company agreement, charge or encumbrance upon any property or assets as applicable, of such Selling Stockholder pursuant to any lawStockholder, statute, rule or regulation or (iii) the terms of any indenture or other agreement or instrument to which such Selling Stockholder is a party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (Biv) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, order or decree statute, rule or regulation applicable to such Selling Stockholder of any court or any publiccourt, governmental or regulatory agency or body, administrative agency agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder, except in the case of clauses (i), (iii) and (iv), for any such conflict, breach, violation or default that would not impair in any material respect the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement.
(g) Such Selling Stockholder does not have In respect of any registration statements in or other similar rights to have any equity or debt securities registered for sale by the Company under omissions from the Registration Statement or included in Statement, the offering of the Shares, except for such rights as have been waived (which waiver remains in full force Pricing Disclosure Package and effect) or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Stockholder does not have, or has waived prior to the date hereof (which waiver remains in full force and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between any Preliminary Prospectus and any Issuer Free Writing Prospectuses made in reliance upon and in conformity with any information related to such Selling Stockholder and any person that would give rise furnished in writing to a valid claim against the Company or the Underwriter by such Selling Stockholder expressly for a brokerage commission, finder’s fee or other like payment use therein in connection with this offering.
the disclosure required by Form S-1 (j) All information furnished by or on behalf of such information, the “Selling Stockholder in writing for use in the Registration Statement and the Prospectus is trueInformation”), correct and complete in all material respects and such information does not contain any an untrue statement of a material fact.
(k) Such Selling Stockholder has not taken and will not takefact or omit to state a material fact required to be stated therein or necessary to make the statements therein, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation light of the price of the Common Stock to facilitate the sale or resale of the Sharescircumstances under which they were made, not misleading.
(l) Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Dunkin' Brands Group, Inc.)
Representations and Warranties of the Selling Stockholders. (a) Each of the Selling Stockholder severally (but only as to itself and not as to any other Selling Stockholder) Stockholders represents and warrants to, to and agrees with, the Underwriter as with each of the date hereof and as of the Closing Date Underwriters that:
(ai) Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(ii) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and constitutes the legalChaseMellon Shareholder Services, valid and binding obligation of such Selling StockholderL.L.C., enforceable in accordance with its termsas Custodian, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder are subject relating to the interests of the Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event.
(c) Such Selling Stockholder is the lawful owner deposit of the Shares to be sold by such Selling Stockholder hereunder and(the "Custody Agreement") and the Power of Attorney appointing certain individuals as such Selling Stockholder's attorneys-in-fact to the extent set forth therein, upon sale relating to the transactions contemplated hereby and delivery ofby the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, and payment for, such Shares as provided herein, or the certificate of incorporation or by-laws of such Selling Stockholder will convey to (if such Selling Stockholder is a corporation), or any agreement or other instrument binding upon such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the Underwriter good performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and marketable title to such Shares, free and clear sale of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoeverthe Shares by the U.S. Underwriters.
(diii) Such Selling Stockholder has full has, and on the Closing Date will have, valid title to the Shares to be sold by such Selling Stockholder and the legal right and power, and all authorizations authorization and approvals approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver all of the Shares which may to be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder’s other obligations hereunder.
(e) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement, or consummation by such Selling Stockholder of the transactions of such Selling Stockholder contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder’s Shares by the Underwriter.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and consummation of any of the other transactions of such Selling Stockholder contemplated herein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that 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 law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of such Selling Stockholder, or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder.
(giv) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Stockholder and are valid and binding agreements of such Selling Stockholder.
(v) Delivery of the Shares to be sold
(vi) Such Selling Stockholder does has no knowledge of any material fact, condition or information not have any registration disclosed in the Registration Statement which has adversely affected or other similar rights to have any equity or debt securities registered for sale by may adversely affect the business of the Company under and its subsidiaries, taken as a whole; and the sale of the Shares by such Selling Stockholder pursuant hereto is not prompted by any material information concerning the Company or any of its subsidiaries which is not set forth in the Registration Statement or included in the offering of the Shares, except for such rights as have been waived (which waiver remains in full force and effect) or which are described in the Prospectus (and which have been complied with)documents incorporated by reference therein.
(hb) Such Selling Stockholder does not have, or has waived prior In addition to the date hereof (which waiver remains representations and warranties set forth in full force Section 2(a) above, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ represents, warrants and effect), any preemptive right, co-sale right or right of first refusal or other similar right to purchase any agrees with each of the Shares Underwriters that are to be sold by any other Selling Stockholder to the Underwriter pursuant to this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) All information furnished by or on behalf of such Selling Stockholder in writing for use in the Registration Statement and the Prospectus is trueStatement, correct and complete in all material respects and does when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact.
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (kii) Such Selling Stockholder has the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not taken and contain and, as amended or supplemented, if applicable, will not takecontain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation the light of the price of circumstances under which they were made, not misleading, except that the Common Stock representations and warranties set forth in this paragraph 2(b) do not apply to facilitate statements or omissions in the sale Registration Statement or resale of the Shares.
(l) Such Selling Stockholder has not distributed and will not distribute, prior Prospectus based upon information relating to any Underwriter furnished to the later of the Closing Date and the completion of the Underwriter’s distribution of the Shares, any offering material Company in connection with the offering and sale of the Shares by the Selling Stockholders other than any Preliminary Prospectus, the Prospectus or the Registration Statement. Any certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty writing by such Selling Stockholder to the Underwriter as to the matters covered therebythrough you expressly for use therein.
Appears in 1 contract