Representations and Warranties by the Selling Shareholders. Each Selling Shareholder, severally and not jointly, represents and warrants to each Underwriter at the date hereof, the Applicable Time and the Closing Time, and agrees with each Underwriter, as follows: (i) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Shareholder of this Agreement and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder, have been obtained; and such Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder, in each case except where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein; (ii) This Agreement has been duly authorized, executed and delivered by such Selling Shareholder and constitutes the legal, valid and binding obligation of such Selling Shareholder; (iii) Such Selling Shareholder, has been duly incorporated (or organized) and is validly existing as a corporation (or other organization) in good standing under the laws of its jurisdiction (or organization); (iv) The sale of the Shares to be sold by such Selling Shareholder hereunder, the execution of this Agreement by such Selling Shareholder and the compliance by such Selling Shareholder with all of the provisions of this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which such Selling Shareholder or its affiliates is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (B) the certificate or articles of incorporation or by-laws (or other organization documents) of such Selling Shareholder, or (C) any statute or any order, law, rule, regulation or decree of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of its property or assets; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the sale of the Shares to be sold by such Selling Shareholder hereunder or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Shares, the filing of any Schedule 13D or Form 4s required by Section 16 of the Exchange Act, the approval by FINRA of the underwriting terms and arrangements and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, except in the case of (A) and (C) where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein; (v) Such Selling Shareholder has, and immediately prior to the Closing Date will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares subject to sale by such Selling Shareholder pursuant to this Agreement on such date free and clear of all security interests, claims, liens, equities or other encumbrances; (vi) 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 UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its articles of incorporation, bylaws and applicable law, rule or regulation, (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; (vii) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of the Shares or any reference security, whether to facilitate the sale or resale of the Shares or otherwise and has taken no action which could directly or indirectly violate Regulation M under the Exchange Act; (viii) There are no legal or governmental proceedings pending to which such Selling Shareholder is a party or of which any property of such Selling Shareholder is the subject which, if determined adversely to such Selling Shareholder, individually or in the aggregate, could prevent or impair the consummation of the transactions contemplated by this Agreement; and (A) At the respective times the Registration Statement and any post-effective amendments thereto became effective and at the Closing Date, the Registration Statement and any amendments and supplements (including any prospectus wrapper) thereto did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) at the time the Pricing Prospectus, the Prospectus or any amendments or supplements thereto were issued and at the Closing Date, none of the Pricing Prospectus, the Prospectus nor any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in clauses (A) and (B) above shall (X) only apply to statements or omissions made in reliance upon and in conformity with information relating to such Selling Shareholder furnished by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment or supplement thereto, it being understood and agreed that such information consists only of the name of such Selling Shareholder, the number of Shares to be sold by such Selling Shareholder and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Pricing Prospectus in the table (and corresponding footnotes) under the caption “Selling Shareholders” (with respect to each Selling Shareholder, the “Selling Shareholder Information”), and (Y) not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in strict conformity with information furnished to the Company in writing by any Underwriter through the Representative expressly for use in the Registration Statement or the Prospectus, it being understood and agreed that the only such information provided by any Underwriter is the Underwriter Information. (x) 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, the Selling Shareholder will deliver to you prior to or on the Closing Date a properly completed and executed United States Treasury Department Form W-9 or Form W-8, as applicable (or other applicable form or statement specified by Treasury Department regulations in lieu thereof); (xi) There are no affiliations or associations between any member of the FINRA and such Selling Shareholder, except as described in the Pricing Prospectus; none of the proceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder hereunder will be paid to a member of the FINRA or any affiliate of (or person “associated with,” as such terms are used in the rules of the FINRA) such member; (xii) Such Selling Shareholder is not prompted by any material non-public information concerning the Company or any of its Subsidiaries that is not disclosed in the Pricing Prospectus to sell its Shares pursuant to this Agreement. The Selling Shareholder has a reasonable basis for making each of the representations set forth in this SECTION 1(c). The Selling Shareholder acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to SECTION 7 hereof, counsel to the Company and counsel to the Underwriters, may rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Sources: Underwriting Agreement (Atlantic Capital Bancshares, Inc.)
Representations and Warranties by the Selling Shareholders. Each Selling Shareholder, Shareholder severally and not jointly, represents and warrants as to itself only to each Underwriter at as of the date hereof, the Applicable Time and as of the Closing Time, and, if the Selling Shareholder is selling Option Securities on a Date of Delivery, as of each such Date of Delivery, and agrees with each Underwriter, as follows:
(i) All consentsAccurate Disclosure. With respect to any statements or omissions from the Registration Statement, approvalsany preliminary prospectus, authorizations the Prospectus or any amendment or supplement thereto made in reliance upon and orders necessary for in conformity with written information furnished to the execution and delivery Company by or on behalf of such Selling Shareholder expressly for use therein, such Selling Shareholder hereby makes the same representations and warranties as the Company makes to the Underwriters under the second paragraph of paragraph (a)(i) of this Agreement Section 1. The Underwriters acknowledge and agree that, for purposes of this clause (i) and Sections 6(b) and 7 hereof, the sale only information furnished to the Company by or on behalf of any Selling Shareholder specifically for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement thereto are the statements pertaining to the number of shares owned as of record and delivery beneficially by and the number of the Shares shares proposed to be sold by such Selling Shareholder hereunder, have been obtained; under the caption "Security Ownership of Principal and such Selling Stockholders and Management."
(ii) Authorization of Agreements. Such Selling Shareholder has the full right, power and authority to enter into this Agreement and a Power of Attorney and Custody Agreement (the "Power of Attorney and Custody Agreement") and to sell, assign, transfer and deliver the Shares Securities to be sold by such Selling Shareholder hereunder. The execution, in each case except where such conflict, breach or default could not reasonably be expected to have a material adverse effect on delivery and performance of this Agreement and the ability Power of Attorney and Custody Agreement and the sale and delivery of the Selling Shareholder to consummate the transactions contemplated herein;
(ii) This Agreement has been duly authorized, executed and delivered by such Selling Shareholder and constitutes the legal, valid and binding obligation of such Selling Shareholder;
(iii) Such Selling Shareholder, has been duly incorporated (or organized) and is validly existing as a corporation (or other organization) in good standing under the laws of its jurisdiction (or organization);
(iv) The sale of the Shares Securities to be sold by such Selling Shareholder hereunder, the execution of this Agreement by such Selling Shareholder and the consummation of the transactions contemplated herein and compliance by such Selling Shareholder with all its obligations hereunder have been duly authorized by such Selling Shareholder and do not and will not, whether with or without the giving of the provisions notice or passage of this Agreement and the consummation of the transactions herein and therein contemplated will not time or both, conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, (A) or result in the creation or imposition of any tax or Lien upon the Securities to be sold by such Selling Shareholder or any property or assets of such Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which such Selling Shareholder or its affiliates is a party or by which such Selling Shareholder is bound may be bound, or to which any of the property or assets of such Selling Shareholder is subject, (B) nor will such action result in any violation of the certificate or articles provisions of incorporation the charter or by-laws (or other organization documents) organizational instrument of such Selling Shareholder, or (C) any statute if applicable, or any orderapplicable treaty, law, statute, rule, regulation regulation, judgment, order, writ or decree of any court government, government instrumentality or governmental agency court, domestic or body foreign, having jurisdiction over such Selling Shareholder or any of its property or assets; properties.
(iii) Record and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body Beneficial Ownership. Such Selling Shareholder (i) is required for at the sale date hereof the record and beneficial owner of the Shares Securities to be sold by such Selling Shareholder hereunder or under this Agreement, in each case free and clear of any Lien, other than pursuant to this Agreement, and (ii) will be at the consummation Closing Time and, if any Option Securities are purchased from such Selling Shareholder, on the Date of Delivery, the record and beneficial owner of the Securities to be sold by such Selling Shareholder of the transactions contemplated by under this Agreement, except the registration under in each case free and clear of any Lien, other than pursuant to this Agreement. Upon payment for the Securities Act of to be sold by such Selling Shareholder to the SharesUnderwriters as provided herein, the filing delivery of any Schedule 13D or Form 4s required by Section 16 of the Exchange Act, the approval by FINRA of the underwriting terms and arrangements and such consents, approvals, authorizations, registrations or qualifications Securities to such nominee as may be required under state securities or Blue Sky laws in connection with designated by The Depository Trust Company ("DTC"), the purchase and distribution of the Shares registration by the Underwriters, except Company of such Securities in the case name of (A) such nominee and (C) where the crediting by book entry of such conflict, breach or default could not reasonably be expected to have a material adverse effect Securities on the ability records of the Selling Shareholder DTC to consummate the transactions contemplated herein;
one or more "securities accounts" (v) Such Selling Shareholder has, and immediately prior to the Closing Date will have, good and valid title to, or a valid “security entitlement” within the meaning of as defined in Section 8-501 of the New York Uniform Commercial Code (the “"UCC”) in respect of, the Shares subject to sale by such Selling Shareholder pursuant to this Agreement on such date free and clear of all security interests, claims, liens, equities or other encumbrances;
(vi) 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 each of the Underwriters (assuming that neither the Underwriters nor DTC nor any such Underwriter has have notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such SharesSecurities or any security entitlement (as defined in Section 8-102 of the UCC) in respect thereof), (A) DTC shall be a “protected purchaser” purchaser of such Shares Securities within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, each of the Underwriters will acquire a valid security entitlement in respect of such Shares Securities and (C) no action based on any “an adverse claim”, within the meaning of claim (as defined in Section 8-102 of the UCC, ) to such Shares Securities may be asserted against any of the Underwriters Underwriters.
(iv) Due Execution of Power of Attorney and Custody Agreement. Such Selling Shareholder has duly executed and delivered, in the form heretofore furnished to the Representatives, the Power of Attorney and Custody Agreement with respect Richard R. Burnham, David C. Gasmire and Douglas B. Cannon, o▇ ▇▇▇ ▇▇ ▇▇▇▇, ▇▇ at▇▇▇▇▇▇▇-▇▇-▇▇▇▇ (the "▇▇▇▇▇▇▇▇▇-▇▇-▇▇▇t") and U.S. Stock Transfer Corporation, as custodian (the "Custodian"); the Custodian is authorized to such security entitlement; for purposes of this representation, deliver the Securities to be sold by such Selling Shareholder hereunder and to accept payment therefor; and each Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificate referred to in Section 5(f) hereof or that may assume that when be required pursuant to Sections 5(m) and 5(n) hereof on behalf of such paymentSelling Shareholder, to sell, assign and transfer to the Underwriters the Securities to be sold by such Selling Shareholder hereunder, to determine the purchase price to be paid by the Underwriters to such Selling Shareholder, as provided in Section 2(a) hereof, to authorize the delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its articles of incorporation, bylaws and applicable law, rule or regulation, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC Securities to be sold by such Selling Shareholder hereunder, to accept payment therefor, and (z) appropriate entries otherwise to the accounts act on behalf of the several Underwriters on the records of DTC will have been made pursuant to the UCC;such Selling Shareholder in connection with this Agreement.
(viiv) Absence of Manipulation. Such Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to cause or result in, or which constitutes has constituted or which might reasonably be expected to constitute, the cause or result in stabilization or manipulation of the price of any security of the Shares or any reference security, whether Company to facilitate the sale or resale of the Shares or otherwise and has taken no action which could directly or indirectly violate Securities in violation of Regulation M under the Exchange 1934 Act;
(viii) There are no legal or governmental proceedings pending to which such Selling Shareholder is a party or of which any property of such Selling Shareholder is the subject which, if determined adversely to such Selling Shareholder, individually or in the aggregate, could prevent or impair the consummation of the transactions contemplated by this Agreement; and
(A) At the respective times the Registration Statement and any post-effective amendments thereto became effective and at the Closing Date, the Registration Statement and any amendments and supplements (including any prospectus wrapper) thereto did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) at the time the Pricing Prospectus, the Prospectus or any amendments or supplements thereto were issued and at the Closing Date, none of the Pricing Prospectus, the Prospectus nor any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in clauses (A) and (B) above shall (X) only apply to statements or omissions made in reliance upon and in conformity with information relating to such Selling Shareholder furnished by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment or supplement thereto, it being understood and agreed that such information consists only of the name of such Selling Shareholder, the number of Shares to be sold by such Selling Shareholder and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Pricing Prospectus in the table (and corresponding footnotes) under the caption “Selling Shareholders” (with respect to each Selling Shareholder, the “Selling Shareholder Information”), and (Y) not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in strict conformity with information furnished to the Company in writing by any Underwriter through the Representative expressly for use in the Registration Statement or the Prospectus, it being understood and agreed that the only such information provided by any Underwriter is the Underwriter Information.
(x) 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, the Selling Shareholder will deliver to you prior to or on the Closing Date a properly completed and executed United States Treasury Department Form W-9 or Form W-8, as applicable (or other applicable form or statement specified by Treasury Department regulations in lieu thereof);
(xi) There are no affiliations or associations between any member of the FINRA and such Selling Shareholder, except as described in the Pricing Prospectus; none of the proceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder hereunder will be paid to a member of the FINRA or any affiliate of (or person “associated with,” as such terms are used in the rules of the FINRA) such member;
(xii) Such Selling Shareholder is not prompted by any material non-public information concerning the Company or any of its Subsidiaries that is not disclosed in the Pricing Prospectus to sell its Shares pursuant to this Agreement. The Selling Shareholder has a reasonable basis for making each of the representations set forth in this SECTION 1(c). The Selling Shareholder acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to SECTION 7 hereof, counsel to the Company and counsel to the Underwriters, may rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties by the Selling Shareholders. Each Selling Shareholder, severally and not jointly, represents and warrants to each Underwriter at as of the date hereof, as of the Applicable Time and as of the Closing Time, and agrees with each Underwriter, as follows:
(i) All consents, approvals, authorizations and orders necessary for Neither the execution and delivery by such Selling Shareholder of this Agreement and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder, have been obtained; and such Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder, in each case except where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein;
(ii) This Agreement has been duly authorized, executed and delivered by such Selling Shareholder and constitutes the legal, valid and binding obligation of such Selling Shareholder;
(iii) Such Selling Shareholder, has been duly incorporated (or organized) and is validly existing as a corporation (or other organization) in good standing under the laws of its jurisdiction (or organization);
(iv) The sale of the Shares to be sold by such Selling Shareholder hereunder, the execution of this Agreement by such Selling Shareholder and the compliance by such Selling Shareholder with all of the provisions of this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which such Selling Shareholder or its affiliates is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (B) the certificate or articles of incorporation or by-laws (or other organization documents) of such Selling Shareholder, or (C) any statute or any order, law, rule, regulation or decree of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of its property or assets; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the sale of the Shares to be sold by such Selling Shareholder hereunder or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Shares, the filing of any Schedule 13D or Form 4s required by Section 16 of the Exchange Act, the approval by FINRA of the underwriting terms and arrangements and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, except in the case of (A) and (C) where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein;
(v) Such Selling Shareholder has, and immediately prior to the Closing Date will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares subject to sale by such Selling Shareholder pursuant to this Agreement on such date free and clear of all security interests, claims, liens, equities or other encumbrances;
(vi) 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 General Disclosure Package nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its articles of incorporation, bylaws and applicable law, rule or regulation, (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;
(vii) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of the Shares or any reference security, whether to facilitate the sale or resale of the Shares or otherwise and has taken no action which could directly or indirectly violate Regulation M under the Exchange Act;
(viii) There are no legal or governmental proceedings pending to which such Selling Shareholder is a party or of which any property of such Selling Shareholder is the subject which, if determined adversely to such Selling Shareholder, individually or in the aggregate, could prevent or impair the consummation of the transactions contemplated by this Agreement; and
(A) At the respective times the Registration Statement and any post-effective amendments thereto became effective and at the Closing Date, the Registration Statement and any amendments and supplements (including any prospectus wrapper) thereto did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) at the time the Pricing Prospectus, the Prospectus or any amendments or supplements thereto were issued and at the Closing Date, none of the Pricing Prospectus, the Prospectus nor includes any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will omit omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; , provided that the such representations and warranties set forth in clauses this subsection (Ab)(i) and (B) above shall (X) apply only apply to statements or omissions made in reliance upon and in conformity with information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Pricing General Disclosure Package Package, the Prospectus or the any other Issuer Free Writing Prospectus or any amendment or supplement thereto, it being understood and agreed that the only such information consists only of the name of such Selling Shareholder, the number of Shares to be sold furnished by such Selling Shareholder and consists of (A) the legal name, address and number of shares of Common Stock owned by such Selling Shareholder before the offering and (B) the other information with respect to the such Selling Shareholder (excluding percentages) which appear in the Pricing Prospectus in the table (and corresponding footnotes) footnotes under the caption “Principal and Selling Shareholders” therein (with respect to each Selling Shareholder, the “Selling Shareholder Information”), and (Y) not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in strict conformity with information furnished to the Company in writing by any Underwriter through the Representative expressly for use in the Registration Statement or the Prospectus, it being understood and agreed that the only such information provided by any Underwriter is the Underwriter Information.
(x) 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, the Selling Shareholder will deliver to you prior to or on the Closing Date a properly completed and executed United States Treasury Department Form W-9 or Form W-8, as applicable (or other applicable form or statement specified by Treasury Department regulations in lieu thereof);
(xi) There are no affiliations or associations between any member of the FINRA and such Selling Shareholder, except as described in the Pricing Prospectus; none of the proceeds received by such Selling Shareholder from is not prompted to sell the sale of the Shares Securities to be sold by such Selling Shareholder hereunder will be paid to a member of the FINRA or any affiliate of (or person “associated with,” as such terms are used in the rules of the FINRA) such member;
(xii) Such Selling Shareholder is not prompted by any material non-public information concerning the Company or any subsidiary of the Company which is not set forth in the General Disclosure Package or the Prospectus.
(ii) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(iii) The Power of Attorney and Custody Agreement, in the form heretofore furnished to the Representatives (the “Power of Attorney and Custody Agreement”), has been duly authorized, executed and delivered by such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(iv) The execution and delivery of this Agreement and the Power of Attorney and Custody Agreement and the sale and delivery of the Securities to be sold by such Selling Shareholder and the consummation of the transactions contemplated herein and compliance by such Selling Shareholder with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Securities to be sold by such Selling Shareholder or any property or assets of such Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder may be bound, or to which any of the property or assets of such Selling Shareholder is subject (except for such conflicts, breaches or defaults as would not, singly or in the aggregate, materially and adversely affect the performance by such Selling Shareholder of its Subsidiaries that is not disclosed obligations hereunder), nor will such action result in any violation of the provisions of the charter or by-laws or other organizational instrument of such Selling Shareholder, if applicable, or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Selling Shareholder or any of its properties (except for such violations of applicable law, statute, rule, regulation, judgment, order, writ or decree as would not, singly or in the Pricing Prospectus aggregate, materially and adversely affect the performance by such Selling Shareholder of its obligations hereunder).
(v) Such Selling Shareholder has, and at the Closing Time will have, valid title to sell its Shares the Securities to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Power of Attorney and Custody Agreement and to sell, transfer and deliver the Securities to be sold by such Selling Shareholder.
(vi) The Securities to be sold by such Selling Shareholder 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. Certificates for all of the Securities to be sold by such Selling Shareholder pursuant to this Agreement. The , in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with Registrar and Transfer Company (the “Custodian”) with irrevocable conditional instructions to deliver such Securities to the Underwriters pursuant to this Agreement.
(vii) Such Selling Shareholder has a reasonable basis for making each not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or would be expected to cause or result in stabilization or manipulation of the representations set forth in this SECTION 1(c). The price of any security of the Company to facilitate the sale or resale of the Securities.
(viii) No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is necessary or required for the performance by each Selling Shareholder acknowledges of its obligations hereunder or in the Power of Attorney and Custody Agreement, or in connection with the sale and delivery of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the NASDAQ Stock Market LLC, state securities laws or the rules of FINRA.
(ix) Such Selling Shareholder does not have any registration or other similar rights (other than those that have been waived) to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement.
(x) Such Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any “free writing prospectus” as defined in Rule 405 under the 1933 Act, and has not distributed any written materials in connection with the offer or sale of the Securities.
(xi) Except as disclosed to the Underwriters andin a FINRA questionnaire, for purposes neither such Selling Shareholder nor any of his/her/its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of the opinions to be delivered pursuant to SECTION 7 hereof, counsel to the Company and counsel to the Underwriters, may rely upon the accuracy and truthfulness FINRA By-Laws) of the foregoing representations and hereby consents to such relianceFINRA.
Appears in 1 contract
Representations and Warranties by the Selling Shareholders. Each Selling Shareholder, severally for himself or itself only, and not jointly, represents and warrants to each Underwriter at as of the date hereof, as of the Applicable Time and Time, as of the Closing TimeDate and as of each Option Closing Date (if any), and agrees with each Underwriter, as follows:
(ia) All consentsSuch Selling Shareholder has reviewed and will review, approvalsand is and will be familiar with, authorizations the Registration Statement, with any Rule 462(b) Registration Statement and orders necessary for all amendments thereto, if any, each preliminary prospectus, the execution Statutory Prospectus and delivery the Prospectus and any amendments or supplements thereto, if any, and the Pricing Disclosure Package, and, at the respective times that the Registration Statement, any Rule 462(b) Registration Statement or any post-effective amendment thereto became or become effective under the Act, at the Applicable Time, at the Closing Date (and, if any Optional Shares are purchased, at the applicable Option Closing Date), and at any time when a prospectus is required by applicable law to be delivered in connection with sales of Securities, the information relating to such Selling Shareholder (including the information with respect to such Selling Shareholder's Securities and any other shares of Common Stock or other securities of the Company which are owned or held by such Selling Shareholder) that is set forth in the Registration Statement or any Rule 462(b) Registration Statement (or in any amendments thereto) or in any preliminary prospectus, the Statutory Prospectus or the Prospectus (or in any amendments or supplements thereto) or in the Pricing Disclosure Package did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make such information not misleading. All information furnished or confirmed (orally or in writing) by or on behalf of such Selling Shareholder of this Agreement for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus, the Statutory Prospectus or the Prospectus (or any amendment or supplement thereto) or the Pricing Disclosure Package is and for will be true, complete and correct. Such Selling Shareholder is not prompted to sell the sale and delivery of the Shares Securities to be sold by such Selling Shareholder hereunder, have been obtained; and such Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder, in each case except where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein;
(ii) This Agreement has been duly authorized, executed and delivered by such Selling Shareholder and constitutes the legal, valid and binding obligation of such Selling Shareholder;
(iii) Such Selling Shareholder, has been duly incorporated (or organized) and is validly existing as a corporation (or other organization) in good standing under the laws of its jurisdiction (or organization);
(iv) The sale of the Shares to be sold by such Selling Shareholder hereunder, the execution of this Agreement by such Selling Shareholder any material non-public information concerning the Company or any Subsidiary which is not set forth in the Statutory Prospectus and the compliance by such Selling Shareholder with all of Prospectus.
(b) To the provisions of this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which such Selling Shareholder or its affiliates is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (B) the certificate or articles of incorporation or by-laws (or other organization documents) knowledge of such Selling Shareholder, or (C) any statute or any order, law, rule, regulation or decree of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of its property or assets; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the sale of the Shares to be sold by such Selling Shareholder hereunder or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Shares, the filing of any Schedule 13D or Form 4s required by Section 16 of the Exchange Act, the approval by FINRA of the underwriting terms and arrangements and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, except in the case of (A) and (C) where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein;
(v) Such Selling Shareholder has, and immediately prior to the Closing Date will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares subject to sale by such Selling Shareholder pursuant to this Agreement on such date free and clear of all security interests, claims, liens, equities or other encumbrances;
(vi) 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 UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its articles of incorporation, bylaws and applicable law, rule or regulation, (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;
(vii) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of the Shares or any reference security, whether to facilitate the sale or resale of the Shares or otherwise and has taken no action which could directly or indirectly violate Regulation M under the Exchange Act;
(viii) There are no legal or governmental proceedings pending to which such Selling Shareholder is a party or of which any property of such Selling Shareholder is the subject which, if determined adversely to such Selling Shareholder, individually or in the aggregate, could prevent or impair the consummation of the transactions contemplated by this Agreement; and
(A) At at the respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effective or become effective under the Act and at the Closing Date (and, if any Optional Shares are purchased, at the Option Closing Date), the Registration Statement, the Rule 462(b) Registration Statement and any amendments and supplements (including any prospectus wrapper) thereto did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. To the knowledge of such Selling Shareholder, and (B) at the time preliminary prospectus, the Pricing Statutory Prospectus, the Prospectus or and any amendments or supplements thereto were issued and thereto, as of their respective dates, at the Closing Date (and, if any Optional Shares are purchased, at the applicable Option Closing Date), none and at any time when a prospectus is required by applicable law to be delivered in connection with sales of the Pricing ProspectusSecurities, the Prospectus nor any amendment or supplement thereto included or will include not contain an untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the . The representations and warranties contained in clauses this sub-section (Ab) and (B) above shall (X) only apply to statements or omissions made in reliance upon and in conformity with information relating to such Selling Shareholder furnished by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment or supplement thereto, it being understood and agreed that such information consists only of the name of such Selling Shareholder, the number of Shares to be sold by such Selling Shareholder and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Pricing Prospectus in the table (and corresponding footnotes) under the caption “Selling Shareholders” (with respect to each Selling Shareholder, the “Selling Shareholder Information”), and (Y) not apply to statements in or omissions from the Registration Statement Statement, the preliminary prospectus, the Statutory Prospectus or the Prospectus and any amendments or supplements thereto made in reliance upon and in strict conformity with written information furnished to the Company in writing by any Underwriter through the Representative Boenning & Scattergood, Inc. expressly for use in the Registration Statement or the Prospectus, it being understood therein. The parties acknowledge and agreed agree that the only such information provided by any Underwriter is consists solely of the Underwriter Informationinformation specifically identified in Section 8(c) hereof.
(xc) In order to document To the Underwriters’ compliance knowledge of the Selling Shareholders, the representations and warranties of the Company set forth in Section 1 of this Agreement are true and correct.
(d) This Agreement has been duly authorized by such Selling Shareholder and, upon the execution and delivery of this Agreement by the Attorney-in-Fact on behalf of such Selling Shareholder in accordance with the reporting Power of Attorney and withholding provisions the Custody Agreement (as defined below), this Agreement will have been duly executed and delivered by or on behalf of the Tax Equity such Selling Shareholder.
(e) Such Selling Shareholder has duly authorized (if applicable), executed and Fiscal Responsibility Act delivered a power of 1982 attorney (a "Power of Attorney" and, with respect to the transactions herein contemplated, the Selling Shareholder will deliver to you prior to or on the Closing Date a properly completed and executed United States Treasury Department Form W-9 or Form W-8, as applicable (or other applicable form or statement specified by Treasury Department regulations in lieu thereof);
(xi) There are no affiliations or associations between any member of the FINRA and such Selling Shareholder, "its Power of Attorney") appointing the person identified therein as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact"), and a Custody Agreement (a "Custody Agreement" and, with respect to such Selling Shareholder, "its Custody Agreement") with the custodian identified therein as custodian (the "Custodian") and each of its Power of Attorney and its Custody Agreement constitutes a valid and binding obligation of such Selling Shareholder, enforceable in accordance with its terms, except as described enforcement thereof may be limited by bankruptcy, insolvency or other similar laws relating to creditors' rights generally or by general equitable principles. The Attorney-in-Fact, acting alone, is authorized to execute and deliver this Agreement and the certificates referred to in Sections 7(h) and 7(n) hereof on behalf of such Selling Shareholder, to agree to the Pricing Prospectus; none of purchase price to be paid by the proceeds received by Underwriters to such Selling Shareholder from for the sale of the Shares Securities to be sold by such Selling Shareholder hereunder will be paid under this Agreement, to a member authorize the delivery to the Underwriters of the FINRA Securities to be sold by such Selling Shareholder under this Agreement and to accept payment therefor, to duly endorse (in blank or otherwise) the certificate or certificates representing such Securities or a stock power or powers with respect thereto and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement and the transactions contemplated hereby.
(f) Such Selling Shareholder has full right, power and authority to execute, deliver and perform its obligations under this Agreement, its Power of Attorney and its Custody Agreement, as applicable, and to sell, transfer and deliver the Securities to be sold by such Selling Shareholder under this Agreement.
(g) The execution, delivery and performance of this Agreement, its Power of Attorney and its Custody Agreement by such Selling Shareholder, as applicable, and the consummation of the transactions contemplated by this Agreement, its Power of Attorney and its Custody Agreement (including the sale and delivery of the Securities to be sold by such Selling Shareholder pursuant to this Agreement), and compliance by such Selling Shareholder with its obligations under this Agreement, its Power of Attorney and its Custody Agreement, as applicable, do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien upon any of the Securities to be sold by such Selling Shareholder under this Agreement or any affiliate other property or assets of such Selling Shareholder or any of its Subsidiaries (if any) pursuant to, any contract, indenture, mortgage, deed of trust, loan or person “associated with,” as credit agreement, bond, note, debenture, evidence of indebtedness, lease or other agreement or instrument to which such terms are used in the rules Selling Shareholder or any of its Subsidiaries (if any) is a party or by which such Selling Shareholder or any of its Subsidiaries (if any) is bound or to which any of the FINRAproperty or assets of such Selling Shareholder or any of its Subsidiaries (if any) is subject, nor will such member;action result in any violation of the provisions of the organizational documents of such Selling Shareholder or any of its Subsidiaries (if any) or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Selling Shareholder or any of its Subsidiaries (if any) or any of their respective assets, properties or operations.
(xiih) Such Selling Shareholder is not prompted the sole legal, record and beneficial owner of the Securities to be sold by such Selling Shareholder under this Agreement and will remain the sole legal, record and beneficial owner of such Securities until the delivery of such Securities to the Underwriters on the Closing Date or the applicable Option Closing Date, as the case may be, and such Securities are, and such Selling Shareholder has, and at the Closing Date or the applicable Option Closing Date will have, valid title to the Securities to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances other than pursuant to this Agreement and those arising from the Lock-up Agreements, and all legal right and power, and all authorization and approval required by law, and further represents that such Selling Shareholder has obtained and delivered any material non-public information concerning consents, including spousal consents, to transfer his, her or its Securities required by applicable law, to enter into this Agreement, its Power of Attorney and its Custody Agreement, as applicable, and to sell, transfer and deliver the Company or any Securities to be sold by such Selling Shareholder.
(i) Upon payment of its Subsidiaries that is not disclosed in the Pricing Prospectus purchase price for the Securities to sell its Shares be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Securities, as directed by the Underwriters, to Cede & Co. ("Cede") or such other nominee as may be designated by The Depository Trust Company ("DTC") (unless delivery of such Securities of such Selling Shareholder is unnecessary because such Securities are already in possession of Cede or such nominee), the indorsement of such Securities to the Underwriters or in blank (and if such indorsement is on a separate assignment or stock power, the delivery of such assignment or stock power to Cede or such other nominee as may be Designated by DTC), the registration of such Securities in the name of Cede or such other nominee (unless registration of such Securities of such Selling Shareholder is unnecessary because such Securities are already registered in the name of Cede or such nominee), and the crediting of such Securities 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 Securities), (i) DTC shall be a "protected purchaser," within the meaning of Section 8-303 of the UCC, of such Securities and will acquire its interest in the Securities (including, without limitation, all rights that the Selling Shareholder had or has the power to transfer in such Securities) free and clear of any adverse claim within the meaning of Section 8-102 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Securities and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any "adverse claim," within the meaning of Section 8-102 of the UCC, to such Securities 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 (if necessary) and crediting occur, (X) such Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company's share registry in accordance with its certificate of incorporation, by-laws 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.
(j) The Lock-up Agreement applicable to such Selling Shareholder has a reasonable basis for making each been duly authorized, executed and delivered by such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(k) Such Selling Shareholder has not taken, and will not take, directly or indirectly, any action that is designed to or that has constituted or would reasonably be expected to cause or result in stabilization or manipulation of the representations set forth in this SECTION 1(cprice of any security of the Company.
(i) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (ii) no authorization, approval, vote or other consent of any securityholder (or other equity owner). The , if any, or creditor of such Selling Shareholder, and (iii) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the execution or delivery by such Selling Shareholder acknowledges that of, or the performance by such Selling Shareholder of its obligations under, this Agreement, its Custody Agreement or its Power of Attorney, as applicable, for the sale and delivery by such Selling Shareholder of the Securities to be sold by it under this Agreement, or for the consummation by such Selling Shareholder of the other transactions contemplated by this Agreement, its Custody Agreement or its Power of Attorney, as applicable, except such as may be required under the Act, the Regulations, or state securities laws.
(m) Neither such Selling Shareholder nor any of his, her or its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or is an associated person (within the meaning of Article I, (dd) of the By-laws of the National Association of Securities Dealers, Inc.) of, any member firm of the National Association of Securities Dealers, Inc. Any certificate signed by a Selling Shareholder or the Attorney-in-Fact on behalf of any Selling Shareholder delivered to the Representative or to counsel for the Underwriters and, for purposes of the opinions shall be deemed a representation and warranty by such Selling Shareholder to be delivered pursuant to SECTION 7 hereof, counsel each Underwriter as to the Company and counsel to the Underwriters, may rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliancematters covered thereby.
Appears in 1 contract
Representations and Warranties by the Selling Shareholders. Each Selling Shareholder, severally and not jointly, Shareholder represents and warrants to each Underwriter at the Placement Agent and the Company as of the date hereof, the Applicable and as of each Closing Time and the Closing Timereferred to in Section 2(b) hereof, and agrees with each Underwriterthe Placement Agent and the Company, as follows:
(i) Such Selling Shareholder now has and at each Closing Time (as defined in Section 2(b) hereof) will have good and valid title to all the Securities to be sold by such Selling Shareholder hereunder, free and clear of all liens, encumbrances, equities, security interests and claims whatsoever, with full legal right, power and authority to enter into this Agreement and the Power of Attorney;
(ii) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to stabilize or manipulate, or which has constituted stabilization or manipulation of, the price of the Securities in order to facilitate the sale or resale of the Securities or otherwise;
(iii) Such Selling Shareholder is disposing of such Securities for his, her or its own account. Such Selling Shareholder is not selling such Securities, directly or indirectly, for the benefit of the Company or the Placement Agent, and no part of the proceeds of such sale to be received by such Selling Shareholder will inure, either directly or indirectly, to the benefit of the Company;
(iv) This Agreement and the Power of Attorney have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and this Agreement and the Power of Attorney are valid and binding obligations of such Selling Shareholder enforceable in accordance with their terms; and pursuant to the power of attorney conferred by such Power of Attorney, such Selling Shareholder has, among other things, authorized the Attorney-in-Fact to execute and deliver on such Selling Shareholder's behalf this Agreement and any other document that such Selling Shareholder may deem necessary, advisable or appropriate in connection with the transactions contemplated hereby;
(v) Such Selling Shareholder is familiar with the Registration Statement and the Prospectus and has no knowledge of any material information concerning the current operations of the Company or any of its subsidiaries which is required to be set forth in the Prospectus and is not set forth therein. All information furnished in writing to the Company or the Placement Agent by such Selling Shareholder specifically for use in the preparation of the Registration Statement and the Prospectus and other documents to be filed with the National Association of Securities Dealers, Inc. (the "NASD") or state securities or Blue Sky authorities is true and correct and does not contain an untrue statement of a material fact nor does it omit to state any material fact required to be stated therein or necessary to make such information not misleading. Each Selling Shareholder has only furnished to the Company or the Placement Agent expressly for such use, the statements concerning such Selling Shareholder set forth in the Prospectus under the caption "Selling Shareholders";
(vi) The execution and performance of this Agreement and the consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not conflict with, result in a breach of, or constitute a default under any will, trust (constructive or other), agreement, indenture, mortgage, note, deed, rule, regulation, order, injunction, judgment, decree or other instrument to which such Selling Shareholder is a party or by which such person is bound; and
(vii) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Shareholder of this Agreement and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder, have been obtained; and such Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder, in each case except where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein;
(ii) This Agreement has been duly authorized, executed and delivered by such Selling Shareholder and constitutes the legal, valid and binding obligation of such Selling Shareholder;
(iii) Such Selling Shareholder, has been duly incorporated (or organized) and is validly existing as a corporation (or other organization) in good standing under the laws of its jurisdiction (or organization);
(iv) The sale of the Shares to be sold by such Selling Shareholder hereunder, the execution of this Agreement by such Selling Shareholder and the compliance by such Selling Shareholder with all of the provisions of this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which such Selling Shareholder or its affiliates is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (B) the certificate or articles of incorporation or by-laws (or other organization documents) of such Selling Shareholder, or (C) any statute or any order, law, rule, regulation or decree of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of its property or assets; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the sale of the Shares Securities to be sold by such Selling Shareholder hereunder or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Shares, the filing of any Schedule 13D or Form 4s required by Section 16 of the Exchange Act, the approval by FINRA of the underwriting terms and arrangements and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, except in the case of (A) and (C) where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein;
(v) Such Selling Shareholder has, and immediately prior to the Closing Date will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares subject to sale by such Selling Shareholder pursuant to this Agreement on such date free and clear of all security interests, claims, liens, equities or other encumbrances;
(vi) 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 UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its articles of incorporation, bylaws and applicable law, rule or regulation, (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;
(vii) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of the Shares or any reference security, whether to facilitate the sale or resale of the Shares or otherwise and has taken no action which could directly or indirectly violate Regulation M under the Exchange Act;
(viii) There are no legal or governmental proceedings pending to which such Selling Shareholder is a party or of which any property of such Selling Shareholder is the subject which, if determined adversely to such Selling Shareholder, individually or in the aggregate, could prevent or impair the consummation of the transactions contemplated by this Agreement; and
(A) At the respective times the Registration Statement and any post-effective amendments thereto became effective and at the Closing Date, the Registration Statement and any amendments and supplements (including any prospectus wrapper) thereto did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) at the time the Pricing Prospectus, the Prospectus or any amendments or supplements thereto were issued and at the Closing Date, none of the Pricing Prospectus, the Prospectus nor any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in clauses (A) and (B) above shall (X) only apply to statements or omissions made in reliance upon and in conformity with information relating to such Selling Shareholder furnished by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment or supplement thereto, it being understood and agreed that such information consists only of the name of such Selling Shareholder, the number of Shares to be sold by such Selling Shareholder and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Pricing Prospectus in the table (and corresponding footnotes) under the caption “Selling Shareholders” (with respect to each Selling Shareholder, the “Selling Shareholder Information”), and (Y) not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in strict conformity with information furnished to the Company in writing by any Underwriter through the Representative expressly for use in the Registration Statement or the Prospectus, it being understood and agreed that the only such information provided by any Underwriter is the Underwriter Informationobtained.
(x) 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, the Selling Shareholder will deliver to you prior to or on the Closing Date a properly completed and executed United States Treasury Department Form W-9 or Form W-8, as applicable (or other applicable form or statement specified by Treasury Department regulations in lieu thereof);
(xi) There are no affiliations or associations between any member of the FINRA and such Selling Shareholder, except as described in the Pricing Prospectus; none of the proceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder hereunder will be paid to a member of the FINRA or any affiliate of (or person “associated with,” as such terms are used in the rules of the FINRA) such member;
(xii) Such Selling Shareholder is not prompted by any material non-public information concerning the Company or any of its Subsidiaries that is not disclosed in the Pricing Prospectus to sell its Shares pursuant to this Agreement. The Selling Shareholder has a reasonable basis for making each of the representations set forth in this SECTION 1(c). The Selling Shareholder acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to SECTION 7 hereof, counsel to the Company and counsel to the Underwriters, may rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Sources: Placement Agency Agreement (Forest City Enterprises Inc)
Representations and Warranties by the Selling Shareholders. Each Selling Shareholder, Shareholder severally and not jointly, represents and warrants to each Underwriter at as of the date hereof, as of the Applicable Time and Time, as of the Closing TimeTime and, if the Selling Shareholder is selling Option Securities on a Date of Delivery, as of each such Date of Delivery, and agrees with each Underwriter, as follows:
(i) Each Selling Shareholder that is not an individual is validly existing in good standing under the laws of its jurisdiction of formation and has the requisite power and authority to sell the Securities.
(ii) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Shareholder of this Agreement, the Power of Attorney (as defined in Section 2(d) hereof) and the Custody Agreement (as defined below), and for the sale and delivery of the Shares Securities to be sold by such Selling Shareholder hereunder, have been obtained; and such . Such Selling Shareholder has full right, the necessary power and authority to enter into this Agreement, the Power of Attorney and the Custody Agreement and to sell, assign, transfer and deliver the Shares Securities to be sold by such Selling Shareholder hereunder, in each case except where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein;.
(iiiii) This Agreement has been duly authorized, executed and delivered by such Selling Shareholder and constitutes the legal, valid and binding obligation or on behalf of such Selling Shareholder;
(iii) Such , and is a valid and binding agreement of such Selling Shareholder, has been duly incorporated (or organized) and is validly existing as a corporation (or other organization) in good standing under the laws of its jurisdiction (or organization);subject to equity.
(iv) The sale Custody Agreement between such Selling Shareholder and Continental Stock Transfer & Trust Company, as custodian (the “Custodian”), relating to the deposit of the Shares Securities to be sold by such Selling Shareholder (the “Custody Agreement”), and the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”), have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, subject to equity.
(v) Neither the execution and delivery by such Selling Shareholder of, nor the performance by such Selling Shareholder of his, her or its obligations under, this Agreement, the Custody Agreement or the Power of Attorney will conflict with, contravene, result in a breach or violation of, or constitute a default under: (i) any statute, law, rule, regulation, judgment, order or decree of any Governmental Authority or court having jurisdiction over such Selling Shareholder, (ii) the articles or certificate of incorporation or bylaws (or charter and other organizational documents) of such Selling Shareholder, if applicable, or (iii) any contract, agreement, obligation, covenant or instrument to which such Selling Shareholder (or any of its assets) is subject or bound, except, in the case of the foregoing clauses (i) and (iii), for any such conflict, contravention, breach, violation or default that would not, individually or in the aggregate, reasonably be expected to materially impact such Selling Shareholder’s ability to perform its obligations under this Agreement, the Custody Agreement or the Power of Attorney.
(vi) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the Exchange), is required in connection with the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney, other than (i) such as have been, or prior to the Closing Time will be, obtained or made, (ii) the registration of the Securities under the 1933 Act, which has been effected (or, with respect to any Rule 462 Registration Statement, will be effected in accordance with Rule 462(b) under the 1933 Act), (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Securities are being offered by such Selling Shareholder, (iv) such approvals as have been or, as of the Closing Time, will be obtained in connection with the listing of the Securities on the Exchange or (v) the approval by FINRA of the underwriting terms and arrangements.
(vii) Such Selling Shareholder has good and valid title to the Securities to be sold by such Selling Shareholder and, immediately prior to the Closing Time and any Date of Delivery, if any, will have good and valid title to the Securities to be sold by such Selling Shareholder hereunder, the execution free and clear of this Agreement by such Selling Shareholder all liens, encumbrances, security interests, equities or claims, and the compliance by such Selling Shareholder when delivered against payment therefor in accordance with all of the provisions of this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which such Selling Shareholder or its affiliates is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (B) the certificate or articles of incorporation or by-laws (or other organization documents) of such Selling Shareholder, or (C) any statute or any order, law, rule, regulation or decree of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of its property or assets; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the sale of the Shares to be sold by such Selling Shareholder hereunder or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Shares, the filing of any Schedule 13D or Form 4s required by Section 16 of the Exchange Act, the approval by FINRA of the underwriting terms and arrangements and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, except in the case of (A) and (C) where such conflict, breach or default could not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein;
(v) Such Selling Shareholder has, and immediately prior to the Closing Date will havehereof, good and valid title toto such Securities, 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 subject to sale by such Selling Shareholder pursuant to this Agreement on such date free and clear of all liens, encumbrances, security interests, equities or claims, liens, equities or other encumbrances;will pass to the Underwriters.
(viviii) Upon payment for Prior to the Shares to be sold by execution hereof, such Selling Shareholder pursuant to this Agreementhas not, delivery of such Sharesdirectly or indirectly, as directed offered or sold any Securities 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 means of any adverse claim “prospectus” (within the meaning of Section 8-105 the ▇▇▇▇ ▇▇▇) or used any prospectus in connection with the offering of the UCC) to such Shares)Securities, (A) DTC shall be a “protected purchaser” of such Shares within in each case other than the meaning of Section 8-303 then most recent preliminary prospectus. Without the consent 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 representationRepresentative, such Selling Shareholder may assume that when such paymenthas not, delivery directly or indirectly, prepared, made, used, authorized, approved or referred to, and crediting occurwill not prepare, make, use, authorize, approve or refer to, any free writing prospectus or Written Testing-the-Waters Communication.
(ix) [RESERVED].
(x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its articles of incorporation, bylaws and applicable law, rule or regulation, (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;
(vii) Such Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action designed designed, or which has constituted or might reasonably be expected, to cause or result in, or which constitutes or might reasonably be expected to constitute, in the stabilization or manipulation of the price of any security of the Shares or any reference security, whether Company to facilitate the sale or resale of the Shares Securities.
(xi) Except as described in the Registration Statement, General Disclosure Package and the Prospectus or, as applicable, expressly waived prior to the date hereof with respect to the offering of the Securities, such Selling Shareholder does not (i) have any registration or otherwise other similar rights to have any securities registered for sale by the Company under the Registration Statement or included in the offering of the Securities, (ii) have any preemptive rights, co-sale rights, rights of first refusal or other similar rights to purchase any of the Securities that are to be sold by any of the other Selling Shareholders pursuant to this Agreement and has taken no action which could (iii) own any warrants, options or similar rights, and does not have any right or arrangement, to acquire any capital stock, rights, warrants, options or other securities from the Company.
(xii) Such Selling Shareholder is not currently the subject of or the target of any Sanctions and is not located, organized or resident in a country or territory that is the subject of comprehensive Sanctions (currently, Cuba, Iran, North Korea, Syria and Crimea). Such Selling Shareholder will not directly or indirectly violate Regulation M under use the Exchange Act;
proceeds of the offering of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, to fund or facilitate any activities of or business with any person, or in any country or territory, that at such time is the subject of Sanctions or in any other manner, in each case, that will result in a violation by any person (viii) There are no legal including any person participating in the transactions contemplated hereby, whether as an underwriter, advisor, investor or governmental proceedings pending to which such otherwise), of Sanctions. Such Selling Shareholder is a party not knowingly engaged in, and for the past five years has not knowingly engaged in, any dealings or of which transactions with any property of person, or in any country or territory, that at such Selling Shareholder time is or was the subject which, if determined adversely to such Selling Shareholder, individually or in the aggregate, could prevent or impair the consummation target of the transactions contemplated by this Agreement; andSanctions.
(Ai) At the respective times the The Registration Statement and any post-effective amendments thereto Statement, when it became effective and at the Closing Datetime of the execution hereof, the Registration Statement and any amendments and supplements (including any prospectus wrapper) thereto did not and contain and, as amended or supplemented, if applicable, will not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, not misleading, and (Bii) at no time during the time period that begins on the Pricing Prospectus, date of any preliminary prospectus and ends immediately prior to the Prospectus or execution hereof did any amendments or supplements thereto were issued and at the Closing Date, none of the Pricing Prospectus, the Prospectus nor preliminary prospectus contain any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) the General Disclosure Package does not, and at the Applicable Time, at the Closing Time and at any Date of Delivery, if any, the General Disclosure Package, as then 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each road show, when considered together with the General Disclosure Package, does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (v) the Prospectus, at the date it is filed with the Commission pursuant to Rule 424(b) under the 1933 Act, at the Closing Time and at any Date of Delivery, if any, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided provided, however, that the representations and warranties set forth in clauses (A) and (B) above shall (Xthis Section 2(xiii) only apply to statements or omissions made in reliance the Registration Statement, any preliminary prospectus, the General Disclosure Package, any road show or the Prospectus, or any amendments or supplements (including prospectus wrappers) to any of the foregoing, based upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment or supplement theretotherein, it being understood and agreed that the only such information consists only furnished by or on behalf of such Selling Shareholder to the Company expressly for use therein are the legal name and address of, and the number of Securities beneficially owned and offered by, such Selling Shareholder, the number of Shares to be sold by such Selling Shareholder and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Pricing Prospectus in the table (and corresponding footnotes) that appears under the caption “Selling ShareholdersStockholders” in any preliminary prospectus, the General Disclosure Package and the Prospectus (with respect to each Selling Shareholdercollectively, the “Selling Shareholder Information”), and (Y) not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in strict conformity with information furnished to the Company in writing by any Underwriter through the Representative expressly for use in the Registration Statement or the Prospectus, it being understood and agreed that the only such information provided by any Underwriter is the Underwriter Information.
(x) 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, the Selling Shareholder will deliver to you prior to or on the Closing Date a properly completed and executed United States Treasury Department Form W-9 or Form W-8, as applicable (or other applicable form or statement specified by Treasury Department regulations in lieu thereof);
(xi) There are no affiliations or associations between any member of the FINRA and such Selling Shareholder, except as described in the Pricing Prospectus; none of the proceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder hereunder will be paid to a member of the FINRA or any affiliate of (or person “associated with,” as such terms are used in the rules of the FINRA) such member;
(xiixiv) Such Selling Shareholder is not prompted to sell its Securities pursuant to this Agreement by any material non-public information concerning the Company or any of its Subsidiaries subsidiaries that is not disclosed in the Pricing Prospectus to sell its Shares pursuant to this Agreement. The Selling Shareholder has a reasonable basis for making each of the representations set forth in this SECTION 1(c)the Registration Statement, the General Disclosure Package or the Prospectus.
(xv) The Securities represented by the certificates held in custody for such Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder. The arrangements made by such Selling Shareholder acknowledges that for such custody under the Underwriters andCustody Agreement, for purposes and the appointment by such Selling Shareholder of the opinions attorneys-in-fact pursuant to the Power of Attorney, are irrevocable. The obligations of such Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Shareholder, or in the case of an trust or estate, by the death or incapacity of any trustee or executor or the termination of such trust or estate, 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 Shareholder or any such trustee or executor should die or become incapacitated, or if any such trust or estate should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, prior to the delivery of the Securities to be sold by such Selling Shareholder hereunder, certificates representing the Securities to be sold by such Selling Shareholder hereunder shall be delivered by or on behalf of such Selling Shareholders in accordance with the terms and conditions of this Agreement and the Custody Agreement, and actions taken by the attorneys-in-fact pursuant to SECTION 7 hereofthe Power of Attorney shall be as valid as if such death, counsel 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.
(xvi) Such Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to the Company and counsel Title I of ERISA, (ii) a plan or account subject to the Underwriters, may rely upon the accuracy and truthfulness Section 4975 of the foregoing representations and hereby consents Code or (iii) an entity deemed to hold “plan assets” of any such relianceplan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101 or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (Construction Partners, Inc.)