Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that: (a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder. (b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares. (c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares. (d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder. (e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC. (f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement. (g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof. (h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise. (i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder. (i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws. (ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are: (A) the subject of any sanctions administered or enforced by the Sanctions, or (B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria). (iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions. (j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person. (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions; (ii) to fund or facilitate any money laundering or terrorist financing activities; or (iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise). (k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 2 contracts
Sources: Underwriting Agreement (REV Group, Inc.), Underwriting Agreement (REV Group, Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and the Agreement and Power of Attorney appointing certain individuals as such Selling Shareholder’s '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”"POWER OF ATTORNEY") will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states or any applicable law, rule or regulation of any foreign jurisdiction in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code (the "UCC") in respect of, the Shares to be sold by 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 lawlaw or the certificate of incorporation or by-laws or other organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural person), to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have has been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”"CEDE") or such other nominee as may be designated by the The Depository Trust Company (“"DTC”"), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “"protected purchaser” " of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “"adverse claim”", within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s 's share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “"clearing corporation” " within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided PROVIDED that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood the Prospectus or any amendments or supplements thereto.
(g) Such Selling Shareholder has not taken and agreed that will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the only such information is that described as such in Section 11(b) hereofprice of any security of the Company or CME to facilitate the sale or resale of the Shares.
(h) Such In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Shareholder is not will deliver to the Representatives prior to or at the Closing Date a properly completed and executed U.S. Treasury Department Form W-9 (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of other applicable form or statement specified by the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseU.S. Treasury Department regulations in lieu thereof).
(i) Neither Except as disclosed by such Selling Shareholder in writing to the Representatives, neither such Selling Shareholder nor any of his, her or its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to payaffiliates directly, or authorization indirectly through one or approval of the paymentmore intermediaries, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that iscontrols, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republicby, or is under common control with, or has any other Covered Region association with (within the meaning of Ukraine identified pursuant to Executive Order 14065Article 1(q) of the By-laws of the National Association of Securities Dealers, Crimea, Cuba, Iran, North Korea and SyriaInc. (the "NASD").
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in), any dealings or transactions with any Person, or in any country or territory, that at the time member firm of the dealing or transaction is or was the subject of SanctionsNASD.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 2 contracts
Sources: Underwriting Agreement (Chicago Mercantile Exchange Holdings Inc), Underwriting Agreement (Chicago Mercantile Exchange Holdings Inc)
Representations and Warranties of the Selling Shareholders. (A) Each Selling Shareholder (jointly and severally as among Tontine Capital Partners, L.P., Tontine Capital Overseas Master Fund, L.P., Tontine Partners, L.P., Tontine Overseas Fund, Ltd., Tontine 25 Overseas Master Fund, L.P. (together, the “Tontine Selling Shareholders”), and severally only and not jointly as between the Tontine Selling Shareholders and ▇. ▇▇▇▇▇▇▇ Drecoll) represents and warrants to and agrees with each of the Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, Agreement and the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company▇▇▇▇▇ Fargo Bank, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any material agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the Securities Act or securities or Blue Sky laws of the various states any relevant jurisdiction in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by 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, Agreement and the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have has been duly authorized, executed and delivered by such Selling Shareholder and are is a valid and binding agreements agreement of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))UCC to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(A)(g) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofTime of Sale Prospectus, the Prospectus or any amendment or supplement thereto.
(hg) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of prompted by any information concerning the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder Company or its subsidiaries or affiliates, or which is not set forth in the Time of Sale Prospectus to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of sell its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified Shares pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria)this Agreement.
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 2 contracts
Sources: Underwriting Agreement (Tontine Capital Partners L P), Underwriting Agreement (Broadwind Energy, Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any (i) provision of applicable law, or (ii) the certificate of incorporation, by-laws or similar constitutional document limited partnership agreement of such Selling Shareholder (if such Selling Shareholder is not a natural personlimited partnership), or (iii) the trust agreements governing such Selling Shareholder (if such Selling Shareholder is a trust), (iv) any agreement or other instrument binding upon such Selling Shareholder, to the extent such agreement or instrument is material to the Selling Shareholder and its subsidiaries, taken as a whole, or (v) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, Shareholder and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement except in each case above as have already been obtained or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and With respect to any Shares delivered by such Selling Shareholder and are valid and binding agreements in certificated form endorsed to the Underwriters, delivery of the Shares to be sold by such Selling ShareholderShareholder and payment therefor pursuant to this Agreement will pass valid title to such Shares, free and clear of any adverse claim within the meaning of Section 8-102 of the New York Uniform Commercial Code, to each Underwriter who has purchased such Shares without notice of an adverse claim.
(e) Upon With respect to any Shares delivered by such Selling Shareholder through DTC, upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each documentTo the extent that any statements or omissions made in the Registration Statement, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus Prospectus, the Prospectus, or any amendments or supplements thereto are made in reliance upon and in conformity with written information furnished to the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunderCompany by such Selling Shareholder expressly for use therein, (iii) each part of the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements thereintherein not misleading. In addition, in the light each Selling Shareholder listed on Schedule I-B hereto further represents and warrants to and agrees with each of the circumstances under which they were made, not misleading; provided that the representations Underwriters that:
(h) The execution and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing delivery by such Selling Shareholder expressly for use thereinof, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither performance by such Selling Shareholder nor any of its subsidiaries or controlled affiliatesobligations under, nor any the Custody Agreement signed by such Selling Shareholder and Mellon Investor Services, LLC, as Custodian, relating to the deposit of their directors or officers, nor, the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Selling Shareholder’s knowledgeattorneys in fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any employeeprovision of applicable law, agent or representative of the trust agreement governing such Selling Shareholder (if such Selling Shareholder is a trust), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any of its subsidiaries governmental body, agency or non-controlled affiliatescourt having jurisdiction over such Selling Shareholder, has taken and no consent, approval, authorization or will take any action in furtherance of an offer, payment, promise to payorder of, or authorization qualification with, any governmental body or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official agency is required for the benefit of performance by such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate obligations under the Custody Agreement or affiliate Power of Attorney of such Selling Shareholder.
(i) The operations Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and each of its subsidiaries are valid and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge binding agreements of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 2 contracts
Sources: Underwriting Agreement (NightHawk Radiology Holdings Inc), Underwriting Agreement (NightHawk Radiology Holdings Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) any provision of applicable law, or (ii) the operating agreement, limited liability company agreement, partnership agreement, certificate of incorporation, by-laws or similar constitutional other equivalent document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling ShareholderShareholder except in the case of clauses (iii) and (iv) as would not, individually or in the aggregate, have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated by this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) Such Selling Shareholder is not prompted by any information concerning has delivered to the Company or its subsidiaries which is not set forth Representatives an executed lock-up agreement in substantially the Time of Sale Prospectus to sell its Shares pursuant to this form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such any Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such furnished by the Selling Shareholders consists of the following information in Section 11(b) hereofthe Prospectus furnished on behalf of each Selling Shareholder: the name and address of each Selling Shareholder, the number of shares to be sold by each Selling Shareholder and any footnotes regarding beneficial ownership related thereto (the “Selling Shareholder Information”).
(hg) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is 50% or more owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (at present, including, without limitation, the so-called Donetsk People’s Republic, Republic and the so-called Luhansk People’s RepublicRepublic regions of Ukraine, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or knowingly indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions in violation of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, such Such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions in violation of Sanctions.
(ja) Such None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative or controlled affiliate, in each case in their capacity as such, has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds of the offeringto any Government Official in order to influence official action, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or person in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Antiapplicable anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person corruption laws; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and each of its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such the Selling Shareholder, threatened. .
(vi) Such Selling Shareholder represents and its subsidiaries and affiliates have instituted and maintained and will continue warrants that it is not (i) an employee benefit plan subject to maintain policies and procedures reasonably designed Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to promote and achieve compliance with Section 4975 of the AntiInternal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-Corruption Laws101, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinor otherwise.
Appears in 2 contracts
Sources: Underwriting Agreement (CCC Intelligent Solutions Holdings Inc.), Underwriting Agreement (CCC Intelligent Solutions Holdings Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, as to itself represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, Agreement and the Custody Agreement and Irrevocable Power of Attorney signed by such Selling Shareholder and Computershare Trust CompanyShareholder, ▇▇▇▇▇ Fargo Bank, N.A., as Custodian, and the Company, relating to the deposit of the security entitlements with respect to the Shares 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 “Custody Agreement and Power of Attorney”) will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation, by-laws or similar constitutional document other organizational documents, as applicable, of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation, limited liability company or other entity), or (iii) any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, provided that, in the case of clauses (i) and (iii) above, for any such breach, violation or default that would not individually or in the aggregate materially interfere with the consummation of the transactions contemplated by the Agreement or the Custody Agreement and Power of Attorney or the ability of such Selling Shareholder to perform its obligations hereunder and thereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or and Power of Attorney of such Selling Shareholder, except such as may be required by the United States federal and state securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares. For the avoidance of doubt, Selling Shareholder GA SS Holding II LLC has entered into a “Custody Agreement” and not a “Custody Agreement and Power of Attorney,” and all references to Custody Agreement and Power of Attorney in this Agreement shall be deemed, when applicable to GA SS Holding II LLC as Selling Shareholder, to refer to said Custody Agreement.
(c) Such With respect to the Shares to be sold by such Selling Shareholder that are outstanding on the date hereof, such Selling Shareholder has, and with respect to such Shares to be sold upon exercise of Options on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances (other than those created by the Custody Agreement and Power of Attorney) and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, Agreement and the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have has been duly authorized, executed and delivered by such Selling Shareholder and are is a valid and binding agreements agreement of such Selling Shareholder, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditor rights and to general principles of equity.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))UCC to such Shares), (Ai) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (Ciii) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; , provided that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(hg) Such Selling Shareholder has executed a “lock-up” agreement, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, that is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 in full force and effect as of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action date hereof and shall be in furtherance of an offer, payment, promise to pay, or authorization or approval full force and effect as of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling ShareholderClosing Date.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Servicesource International, Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.Inc., as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or equivalent organizational or formation documents, as applicable, (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the case of clauses (i), (iii) and (iv) as would not, individually or in the aggregate, have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated by this Agreement, the Custody Agreement and the Power of Attorney, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.Inc., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling ShareholderShareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of such Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of such Selling Shareholder to perform its obligations hereunder.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the such representations and warranties set forth in this Section 2(gsubsection (g) are limited apply only to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information and in conformity with Shareholder Information (defined below) relating to such Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood the Prospectus, the Time of Sale Prospectus and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan any amendments or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwisesupplements thereto.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea Korea, Sudan and Syria).
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(jiv) Such (a) None of such Selling Shareholder or its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds of the offeringto any Government Official in order to influence official action, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or person in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Antiapplicable anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person corruption laws; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such the Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.[•], as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws formation or similar constitutional document limited liability company agreement of such Selling Shareholder (if such Selling Shareholder is not a natural personlimited liability company), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) The Selling Shareholder Information included in (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through you expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such . The “Selling Shareholder is not (1) an employee benefit plan subject Information” shall mean the collective reference to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative name of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee the related footnotes), the number of a government or government-shares of Common Stock beneficially owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation before and after the offering (including after the exercise of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iiiUnderwriters’ option to purchase Additional Shares), “controlled affiliate” means an affiliate over which and the number of shares of Common Stock to be offered by such Selling Shareholder possesses, directly or indirectly, as set forth under “Principal and Selling Stockholders” in the power to direct or cause the direction Time of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements Sale Prospectus and the Anti-Money Laundering LawsProspectus.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, and, if applicable, the Custody Agreement signed by such Thom▇▇▇▇ ▇▇▇dings, L.P., a Firm Selling Shareholder Shareholder, and Computershare Trust Company, N.A.Republic New York Securities Corporation, as Custodian, relating to the deposit of the Shares to be sold by such Firm Selling Shareholder (the “Custody Agreement”) and "CUSTODY AGREEMENT"), including the Power of Attorney appointing certain individuals as such Firm Selling Shareholder’s '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”"POWER OF ATTORNEY") and the Shareholders Agreement will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder Stockholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this AgreementAgreement or, if applicable, the Custody Agreement or including the Power of Attorney of such Selling Shareholder, Stockholder or the Shareholders Agreement except such as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, subject to the proviso of this paragraph (c), and on the Closing Date or, if applicable, on the Option Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder; provided that Thom▇▇▇▇ ▇▇▇dings, L.P., a Firm Selling Shareholder, will have valid title to the Shares to be sold by such Firm Selling Shareholder or and the legal right and power, and all authorization and approval required by law, to sell, transfer and deliver the Shares to be sold on the Closing Date upon release of the lien on such Firm Selling Shareholder's Shares established in favor of Republic National Bank of New York ("RNB") on June 30, 1997 when such Firm Selling Shareholder pledged such Shares to RNB as collateral for a security entitlement in respect of such Sharespersonal loan.
(d) The Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, fully paid and non-assessable.
(e) The Stockholders Agreement and, if applicable, the Custody Agreement and including 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.
(ef) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited apply only to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is has not (1) an employee benefit plan subject to Title I of ERISAtaken, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or and will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of valuenot take, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organizationaction designed to, or any person acting which might reasonably be expected to, cause or result in an official capacity for stabilization or on behalf manipulation of the price of any security of the foregoing, Company to facilitate the sale or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation resale of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, Shares pursuant to the Company’s knowledgedistribution contemplated by this Agreement, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced and other than as permitted by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five yearsSecurities Act, such Selling Shareholder and each of its subsidiaries have has not engaged in, are not now engaged in, distributed and will not engage in, distribute any dealings prospectus or transactions other offering material in connection with any Person, or in any country or territory, that at the time offering and sale of the dealing or transaction is or was the subject of SanctionsShares.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees agrees, severally and not jointly, with each of the Underwriters that:
(a) This Agreement Such Selling Shareholder has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder organized and is validly existing as a corporation, limited liability company, public agency, or a limited partnership, as the valid and binding agreement case may be, in good standing in its jurisdiction of such Selling Shareholderformation.
(b) The execution Such Selling Shareholder has (other than with respect to the Shares to be issued upon the exercise of options), and delivery by immediately prior to any Delivery Date, such Selling Shareholder ofwill have, good and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating valid title to the deposit shares of the Shares Stock to be sold by such Selling Shareholder (the “Custody Agreement”) hereunder on such Delivery Date 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect ofthereof, the Shares to be sold by such Selling Shareholder free and clear of all security interestsliens, claims, liensencumbrances, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Sharesadverse claims.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(ec) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this AgreementShareholder, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code UCC) to such Shares) (the “UCC”))), (Ai) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares Shares, and (Ciii) no an action based on any “an adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may not be asserted against the Underwriters with respect to such security entitlement; for . For purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC 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.
(fd) Such Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(f) The sale of the Shares by such Selling Shareholder, the execution, delivery and performance of this Agreement by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which such Selling Shareholder is not prompted a party or by which such Selling Shareholder is bound or to which any information concerning of the Company property or its subsidiaries which assets of such Selling Shareholder is not set forth subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such Selling Shareholder, or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder, except, with respect to clauses (i) and (iii), conflicts, defaults, breaches or violations that would not, individually or in the Time of Sale Prospectus aggregate, reasonably be expected to sell have a material adverse effect on such Selling Shareholder’s ability to perform its Shares pursuant to obligations under this Agreement.
(g) (i) Each documentNo consent, if anyapproval, filed authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the sale of the Shares by such Selling Shareholder, the execution, delivery and performance of this Agreement by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby, except as have been received prior to the date hereof and except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be filed pursuant to required under the Exchange Act and incorporated by reference applicable state securities laws and/or the bylaws and rules of FINRA in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects connection with the Exchange Act purchase and the applicable rules and regulations sale of the Commission thereunder, Shares by the Underwriters.
(iih) each part of Such Selling Shareholder has delivered to the Representatives an executed Lock-Up Agreement (as defined below) in substantially the form attached hereto as Exhibit A.
(i) The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and (viiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) paragraph are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder Information furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto. Each Underwriter, the Company and agreed such Selling Shareholder agree that the only “Selling Shareholder Information” with respect to a Selling Shareholder consists solely of the information furnished by such Selling Shareholder for use in connection with the offering in the Registration Statement, the Time of Sale Prospectus and the Prospectus, which consists solely of (i) the name, address and number of shares of Common Stock owned by such Selling Shareholder, before and after the offering, and (ii) the other information is with respect to such Selling Shareholder that described as such appears in Section 11(bthe table (and corresponding footnotes) hereofunder the caption “Principal and Selling Stockholders,” in each case, in the Registration Statement, the Time of Sale Prospectus, the Prospectus or in any free writing prospectus.
(hj) Such Selling Shareholder is not (1) an employee benefit plan subject prompted to Title I sell shares of ERISACommon Stock by any information concerning the Company, (2) a plan or account subject including any of its subsidiaries, that is not set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, which information is required to Section 4975 be included in the Registration Statement, the Time of Sale Prospectus and the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseProspectus.
(ik) Such Selling Shareholder has not taken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the unlawful stabilization or manipulation of the price of any security of the Company in connection with the offering of the Shares.
(l) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliatessubsidiaries, nor any director or officer of their directors the Selling Shareholder or officers, any of its subsidiaries nor, to the knowledge of such Selling Shareholder’s knowledge, any employee, agent or representative employee of such the Selling Shareholder or of any of its subsidiaries or nonany agent, affiliate or other person associated with or acting on behalf of the Selling Shareholder: (i) has made any unlawful contribution, gift, or other unlawful expense relating to political activity; (ii) has made use of any corporate funds for any direct or indirect unlawful bribe, kickback, rebate, payoff, influence payment or otherwise unlawfully provided anything of value, to any “foreign official” (as defined in the FCPA) or domestic government official from corporate funds; or (iii) has violated or is in violation of any provision of the Anti-controlled affiliatesCorruption Laws. Such Selling Shareholder has conducted its business in compliance with the Anti-Corruption Laws. Neither such Selling Shareholder nor any of its subsidiaries (to the extent applicable) will use, has taken directly or will take any action indirectly, the proceeds of the offering of the Shares in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, payment or giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the any Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(iim) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers officers, nor, to the Company’s knowledgeknowledge of such Selling Shareholder, any employee, agent, controlled affiliate or representative, other person associated with or acting on behalf of such Selling Shareholder or any of its subsidiaries (to the extent applicable) is a Person that is, or is owned or controlled by one or more Persons that are:
: (Ai) the subject or the target of any sanctions administered Sanctions; or enforced by the Sanctions, or
(Bii) located, organized or resident in a country or territory that is the subject or target of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea Korea, Syria and SyriaCrimea).
; and such Selling Shareholder will not directly or indirectly use the proceeds of the offering of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person: (i) to fund or facilitate any activities or business of or with any Person, or in any country or territory, that at the time of such funding or facilitation is, or whose government is, the subject or target of Sanctions; (ii) to fund or facilitate any money laundering or terrorist financing activities; or (iii) For in any other manner that will result in a violation of any Sanctions by any Person (including any Person participating in the past five yearsoffering of the Shares whether as an underwriter, such advisor, investor or otherwise). Such Selling Shareholder and each of its subsidiaries (as applicable): (a) have not not, since April 24, 2019, engaged in, in (b) are not now engaged in, and (c) will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction transaction, is or was was, or whose government is or was, the subject or target of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kn) Such Selling Shareholder and its subsidiaries (as applicable) have conducted their operations and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Laws and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue not, directly or indirectly, use the proceeds of the offering of the Shares, or lend, contribute or otherwise make available such proceeds to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Lawsany subsidiary, the joint venture partner or other Person in any manner that would result in a violation of any Anti-Money Laundering LawsLaws by any Person (including any Person participating in the offering of the Shares, Sanctionswhether as an underwriter, advisor, investor or otherwise).
(o) Such Selling Shareholder is not, and is not acting on behalf of, a “benefit plan investor” within the meaning of Section 3(42) of ERISA. Any certificate signed by or on behalf of any Selling Shareholder and delivered to the Representatives or counsel for the Underwriters in connection with the representations offering of the Shares shall be deemed to be a representation and warranties contained hereinwarranty by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (AP VIII Queso Holdings, L.P.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, on a several and not a joint and several basis, and only as to itself represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, Agreement and the Custody Agreement signed by such Selling Shareholder and Computershare American Stock Transfer & Trust Company, N.A.LLC, as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural personan individual), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling ShareholderShareholder except, in each case, where any such contravention would not reasonably be expected to have a material adverse effect on the ability of such Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling ShareholderAgreement, except such as may be required by the U.S. federal or state or foreign securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, except where the failure to obtain such consent, approval, authorization or order of, or qualification with, any governmental body or agency would not reasonably be expected to have a material adverse effect on the ability of such Selling Shareholder to perform its obligations hereunder.
(c) Such Selling Shareholder has, and will have on the Closing Date will have, (as defined in Section 5) valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by 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, for such Selling Shareholder to enter into this Agreement, Agreement and the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have has been duly authorized, executed and delivered by such Selling Shareholder and are is a valid and binding agreements agreement of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery (within the meaning of Section 8-301 of the UCC) of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)))) to such Shares, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (xw) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on in the Company’s share registry register of members in accordance with its certificate memorandum and articles of incorporation, bylaws association and applicable law, (yx) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and UCC, (zy) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC and (z) the jurisdiction of DTC and its nominee for purposes of Section 8-110 of the UCC, and the jurisdiction applicable to the matters specified in subsections (a)(2) through (5) of Section 8-110 of the UCC, is the State of New York.
(f) Such Selling Shareholder is not prompted by any material information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (iA) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivB) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viC) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing Information provided by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(ih) The operations of Except for any net income, capital gains or franchise taxes imposed on the Underwriters by such Selling Shareholder and each Shareholder’s jurisdiction of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements incorporation or any political subdivision or taxing authority thereof or therein as a result of any present or former connection (other than any connection resulting from the transactions contemplated by this Agreement) between the Underwriters and the Anti-Money Laundering Laws.
(ii) Neither jurisdiction imposing such Selling Shareholder nor tax, no stamp duties or other issuance or transfer taxes and no capital gains, income, withholding or other taxes are payable by or on behalf of the Underwriters in such jurisdiction or any of its subsidiaries, nor any of their directors political subdivision or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
taxing authority thereof solely in connection with (A) the subject execution, delivery and performance of any sanctions administered or enforced by the Sanctionsthis Agreement, or
(B) locatedthe delivery of the Shares by such Selling Shareholder in the manner contemplated by this Agreement and the Prospectus or (C) the sale and delivery by the Underwriters of the Shares as contemplated herein and in the Prospectus, organized provided, however, that (1) in the case of the United Kingdom (the “UK”), UK stamp duty may be payable if (a) the original of any relevant document or resident agreement is required to be produced in evidence in any UK civil proceedings or is required for other official purposes in the UK and (b) such document or agreement was executed in the UK or relates to any matter or thing done or to be done in any part of the UK; and (2) in case of an action before a country court in Luxembourg or territory that is an autorité constituée, any documents referred to in the subject summons may have to be registered in which case, as well as in case of comprehensive territorial Sanctions (includinga voluntary registration, without limitationa fixed or an ad valorem tax, depending on the so-called Donetsk People’s Republic, nature of the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea document and Syria)the underlying agreement reflected therein may become due and payable.
(iiii) For the past five years, such Such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged inhas the power to submit, and will not engage inpursuant to Section 17 of this Agreement, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each New York state and United States federal court sitting in the Borough of Manhattan in the City of New York and has validly and irrevocably waived any dealings objection to the laying of venue of any suit, action or transactions with any Person, or proceeding brought in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctionssuch court.
(j) Such Selling Shareholder will nothas not taken, directly or indirectly, use the proceeds of the offering, any action designed to or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would reasonably be expected to cause or result in a violation any stabilization or manipulation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)price of the Shares.
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the agreement or certificate of incorporation, by-laws or similar constitutional document limited partnership of such Selling Shareholder (if such Selling Shareholder is not a natural person), Shareholder; or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S. jurisdictions in connection with the offer and sale of the Firm Shares.
(c) Such Selling Shareholder has, and on the Closing Date and the Option Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are valid validly issued, fully paid and binding agreements of such Selling Shareholdernon-assessable.
(e) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(f) Such All information furnished by or on behalf of such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth for use in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of and Prospectus is, and on the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make Closing Date and on the statements therein not misleadingOption Closing Date will be, (iv) the Time of Sale Prospectus true, correct, and complete, and does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5), and on the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, Option Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, such information not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Omniquip International Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.[_______________], as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”"CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as such Selling Shareholder’s '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”"POWER OF ATTORNEY") will not contravene any provision of applicable law, or the certificate articles of incorporation, by-laws incorporation or similar constitutional document bylaws of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, fully paid and non-assessable.
(e) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(ef) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (iiiii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectuscomply and, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a comply in all material fact or omit to state a material fact necessary to make respects with the statements therein, in Securities Act and the light applicable rules and regulations of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading Commission thereunder; and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through you expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Internap Network Services Corp/Wa)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders severally represents and warrants to and agrees with each of the Underwriters thatas follows:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Such Selling Shareholder now has and at the Option Closing Date (as such dates is the hereinafter defined) will have good and valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating title to the deposit of the Option Shares to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims, and full right, power and authority to effect the sale and delivery of such Option Shares; and upon the delivery of, against payment for, such Option Shares pursuant to this Agreement, the Underwriters will acquire good and valid title thereto, free and clear of any liens, encumbrances, equities and claims.
(b) Such Selling Shareholder (the “Custody has full right, power and authority to execute and deliver this 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance Custodian Agreement referred to below and to perform its obligations under such Agreements. The execution and delivery of this Agreement and the consummation by such Selling Shareholder of its obligations the transactions herein contemplated and the fulfillment by such Selling Shareholder of the terms hereof will not require any consent, approval, authorization, or other order of any court, regulatory body, administrative agency or other governmental body (except as may be required under this Agreementthe Act, state securities laws or Blue Sky laws) and will not result in a breach of any of the Custody Agreement terms and provisions of, or Power of Attorney constitute a default under, organizational documents of such Selling Shareholder, except if not an individual, or any indenture, mortgage, deed of trust or other agreement or instrument to which such as may be required by the securities Selling Shareholder is a party, or Blue Sky laws of the various states in connection with the offer and sale any order, rule or regulation applicable to such Selling Shareholder of the Sharesany court or of any regulatory body or administrative agency or other governmental body having jurisdiction.
(c) Such Selling Shareholder hashas not taken and will not take, and on the Closing Date will havedirectly or indirectly, valid title any action designed to, or a valid “security entitlement” within which has constituted, or which might reasonably be expected to cause or result in the meaning of Section 8-501 stabilization or manipulation of the New York Uniform Commercial Code in respect ofprice of the Common Stock of the Company and, other than as permitted by the Act, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities will not distribute any prospectus or other encumbrances and offering material in connection with the legal right and power, and all authorization and approval required by law, to enter into this Agreement, offering of the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement Without having undertaken to determine independently the accuracy or completeness of either the representations and warranties of the Power of Attorney have been duly authorizedCompany contained herein or the information contained in the Registration Statement, executed and delivered by such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are valid not true and binding agreements correct, is familiar with the Registration Statement and has no knowledge of such Selling Shareholder.
(e) Upon payment for any material fact, condition or information not disclosed in the Registration Statement which has adversely affected or may adversely affect the business of the Company; and the sale of the Option Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder hereto is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed Registration Statement or to be filed pursuant to the Exchange Act and documents incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon . The information relating pertaining to such Selling Shareholder furnished to under the Company in writing by such caption "Principal and Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating Stockholders" in the offering, whether as underwriter, advisor, investor or otherwise)Prospectus is complete and accurate in all material respects.
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(bii) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust the Company, N.A., as Custodian, relating to the deposit of the Shares 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”) ), will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document corporate organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(ciii) Such Selling Shareholder has, and on the Closing Date will have, valid good title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances other than pursuant to this Agreement, the Custody Agreement and the Power of Attorney, and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(div) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(ev) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass good title to such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-102 of the New York Uniform Commercial Code, to each Underwriter who has purchased such Shares without notice of an adverse claim within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCCode.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(gvi) (ia) Each documentInsofar as it has related to such Selling Shareholder, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiib) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus Disclosure Package does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Applicable Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vic) the Prospectus Prospectus, as of its Date, does not contain and, as amended or supplemented, if applicable, will not not, as of the Closing Date, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) 2 are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofDisclosure Package, the Prospectus or any amendments or supplements thereto.
(hvii) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of prompted by any information concerning the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder Company or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person which is not set forth in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements Registration Statement and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of Disclosure Package to sell its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified Shares pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria)this Agreement.
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Biodel Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) Such Selling Shareholder now has, and on the Closing Date will have, valid and marketable title to the Shares to be sold by such Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer or other defect in title.
(b) Such Selling Shareholder now has, and on the Closing Date will have, full legal right and power and any approval required by law (except such as may be required under the Act or state securities or Blue Sky laws governing the purchase and distribution of the Shares), to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire valid and marketable title to such Shares, free and clear of any lien, claim, security interest or other encumbrance, restriction on transfer or defect in title.
(c) This Agreement has and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is are the valid and binding agreement agreements of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their terms except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of such Selling Shareholder's obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(bd) The Neither the execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, Agreement or the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document on behalf of such Selling Shareholder (if nor the consummation of the transactions herein or therein contemplated by or on behalf of such Selling Shareholder is not a natural person), or requires any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is official (except such as may be required for under the performance by Act or state securities or Blue Sky laws governing the purchase and distribution of the Shares) or conflicts or will conflict with or constitutes or will constitute a breach of, or default under, or violates or will violate, any agreement, indenture or other instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is or may be bound or to which any of its obligations under this Agreementsuch Selling Shareholder's property or assets is subject, the Custody Agreement or Power of Attorney any statute, law, rule, regulation, ruling, judgement, injunction, order or decree applicable to such Selling Shareholder or to any property or assets of such Selling Shareholder, except such in each case as may be required by would not adversely affect the securities or Blue Sky laws ability of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and to consummate the legal right and power, and all authorization and approval required transactions contemplated by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by 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 The Registration Statement and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor Prospectus and any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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 amendment or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did supplement thereto do not contain and each such part, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(iiif) The representations and warranties of such Selling Shareholder in the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does notCustody Agreement are, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5)will be, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading true and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofcorrect.
(hg) Such Selling Shareholder is has not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of valuetaken, directly or indirectly, any action designed to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order that might reasonably be expected to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation stabilization or manipulation of any Antithe price of the Common Stock to facilitate the sale or resale of the Shares, except for the lock-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating up arrangements described in the offering, whether as underwriter, advisor, investor or otherwise)Prospectus.
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement Such Selling Shareholder has been duly authorized, executed and delivered at the Closing Date will have good and marketable title to the Selling Shareholder Shares being sold by or on behalf of such Selling Shareholder hereunder, free and is clear of any outstanding liens, encumbrances, security interests, rights, subscriptions, warrants, calls, preemptive rights, options or other agreements of any kind, and full right, power and authority to effect the valid sale and binding agreement delivery of such Shares; and upon the delivery of and payment for the Selling ShareholderShareholder Shares pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, security interests, rights, subscriptions, warrants, calls, preemptive rights, options or other agreements of any kind, will be transferred to the several Underwriters.
(b) Such Selling Shareholder has full right, power and authority to execute and deliver this Agreement and the Custody Agreement referred to below and to perform its obligations under such Agreements. The execution and delivery by such Selling Shareholder of, of this Agreement and the performance consummation by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) transactions herein contemplated 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance fulfillment by such Selling Shareholder of its obligations under this Agreementthe terms hereof will not require any consent, the Custody Agreement approval, authorization, or Power other order of Attorney of such Selling Shareholderany court, regulatory body, administrative agency or other governmental body (except such as may be required by under the Act, state securities laws or Blue Sky laws Laws). The consummation of the various states in connection with transactions herein contemplated and the offer and sale fulfillment of the Sharesterms hereof will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other material agreement or instrument to which such Selling Shareholder is a party, or any order, rule or regulation applicable to such Selling Shareholder of any court or of any regulatory body or administrative agency or other governmental body having jurisdiction.
(c) Such Selling Shareholder hashas not taken and will not take, and on directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Closing Date will have, valid title toExchange Act, or a valid “security entitlement” within the meaning of Section 8-501 otherwise, in stabilization or manipulation of the New York Uniform Commercial Code in respect of, price of the Shares Company's Common Stock to be sold by such Selling Shareholder free and clear facilitate the sale or resale of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Such Selling Shareholder has executed and delivered this Agreement and the Power of Attorney have been duly authorizedCustody Agreement, executed and delivered by in connection herewith, such Selling Shareholder further represents, warrants and are valid and binding agreements of agrees that such Selling ShareholderShareholder has deposited with The Bank of New York, pursuant to the Custody Agreement, the certificates in negotiable form representing such Selling Shareholder Shares for the purpose of further delivery pursuant to this Agreement; and the form of the Custody Agreement has been previously delivered to you.
(e) Upon payment for Without having undertaken to determine independently the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery accuracy or completeness of such Shares, as directed by either the Underwriters, to Cede & Co. (“Cede”) representations and warranties of the Company contained herein or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares information contained in the name of Cede or such other nominee Registration Statement and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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 representationdocuments incorporated therein by reference, such Selling Shareholder may assume that when such paymentis familiar with the Registration Statement and has no knowledge of any material fact, delivery and crediting occur, (x) such Shares will have been registered condition or information not disclosed in the name of Cede Registration Statement or another nominee designated the documents incorporated therein by DTC, in each case on reference which has adversely affected or may adversely affect the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 business of the UCC Company which was previously operated by Elle▇ ▇▇▇ia Company; and (z) appropriate entries to the accounts sale of such Selling Shareholder's Shares by the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder pursuant hereto is not prompted by any information concerning the Company or its subsidiaries any of the Subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this AgreementRegistration Statement or the documents incorporated therein by reference.
(gf) On the Closing Date, all transfer and other taxes (iother than income taxes) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact that are required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares paid in connection with the offering when sale and transfer of the Prospectus is not yet available Selling Shareholder Shares to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented Underwriters will have been paid by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Clear Channel Communications Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this AgreementAgreement and the share transfer agreements, each to be dated the Closing Date, pursuant to which the Shares to be sold by such Selling Shareholder will be transferred by such Selling Shareholder to the Underwriters in accordance with this Agreement (the “Share Transfer Agreements”) and (other than in the case of Sensata Investment Company S.C.A.) the Custody Agreement and Agreement to Sell signed by such Selling Shareholder and Computershare Trust CompanySensata Technologies, N.A.Inc., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”), and (other than in the case of Sensata Investment Company S.C.A.) 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”) will not contravene any provision of applicable law, or the articles of organization, articles of association, certificate of incorporation, by-laws bylaws or similar constitutional document other constituent documents of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation, Luxembourg société en commandite par actions or other business entity), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this AgreementAgreement or the Share Transfer Agreements, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney Attorney, as applicable, and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney Attorney, to the extent such Selling Shareholder is a party thereto, have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles. The Share Transfer Agreements as of the Closing Date will have been duly authorized, executed and delivered by such Selling Shareholder and will be valid and binding agreements of such Selling Shareholder.
(e) 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 account(s) of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts account(s) of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iviii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided except that the representations and warranties set forth in this Section paragraph 2(g) are limited made only as to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative on behalf of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action specifically for use in furtherance of an offer, payment, promise to pay, or authorization or approval the preparation of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectlyRegistration Statement, the power to direct or cause the direction Time of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2Sale Prospectus, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate Prospectus or affiliate of such Selling Shareholderother documents.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Sensata Technologies Holding N.V.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws incorporation or similar constitutional document by‑laws of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 8‑501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances. Such Selling Shareholder has, and on the Closing Date will have, the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares, except such as have been obtained and are in full force and effect at or prior to the Closing Date or as may be required under the Securities Act, applicable state securities or Blue Sky laws, the NASDAQ Global Market and from FINRA.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder[Reserved].
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 8‑105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 8‑303 of the UCC, (B) under Section 8-501 8‑501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 8‑102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occuroccurs, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 8‑102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries Subsidiaries which is not set forth in the Time of Sale Registration Statement, the Preliminary Prospectus or the Final Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each documentAs of the effective date of the Registration Statement and any amendments thereto, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus Registration Statement complied or will comply when so filed in all material respects with the Exchange Securities Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of and the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Final Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Final Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided provided, however, that the such representations and warranties set forth in this Section 2(g) are limited apply only to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by such the Selling Shareholder Shareholders expressly for use thereinin the Registration Statement, the Time of Sale Prospectus or the Final Prospectus, it being understood and agreed that the only such information is furnished by the Selling Shareholders consists only of (A) the legal name and address of the Selling Shareholders set forth under the caption “Selling Stockholders” and (B) the number of Shares owned by the Selling Shareholders before and after the offering (excluding percentages) that described as such appears in Section 11(bthe table (and corresponding footnotes) hereofunder the caption “Selling Stockholders” (collectively, the “Selling Shareholder Information”).
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliatessubsidiaries, has taken or will take any action in furtherance of an offerdirectors, payment, promise to payofficers, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectlyemployees or, to the knowledge of such Selling Shareholder, any government official (including any officer agent or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit affiliate of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the are subject of to any sanctions administered or enforced by the Sanctions, or
(B) located, organized nor is such Selling Shareholder or any of its subsidiaries located or resident in a country or territory that is the subject of Sanctions, where such operations are in violation of such Sanctions, nor is such Selling Shareholder or any of its subsidiaries organized in a country or territory that is the subject of comprehensive territorial Sanctions (includingSanctions; the Selling Shareholder will not, without limitationdirectly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partner or other Person, to fund or facilitate any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is or whose government is, the so-called Donetsk People’s Republicsubject of Sanctions; and since the more recent of April 24, 2019 or 10 years prior to the so-called Luhansk People’s Republic, or any other Covered Region date of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five yearsAgreement, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(ji) Such The operations of such Selling Shareholder will not, directly or indirectly, use the proceeds and each of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or its subsidiaries are and have been conducted at all times in material compliance with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, all applicable Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, Laws and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such Selling Shareholder, threatened.
(j) None of such Selling Shareholder, any of its subsidiaries, directors, officers, employees, or, to the knowledge of such Selling Shareholder, threatened. Such agent or other person acting on behalf of such Selling Shareholder or any of its subsidiaries has taken any action, directly or indirectly, that would result in a violation of any provision of the FCPA, the Bribery Act or any other applicable anti-bribery or anti-corruption law, and such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote ensure, and achieve which are reasonably expected to continue to ensure, continued compliance with the Anti-Corruption LawsFCPA, the AntiBribery Act or such other applicable anti-Money Laundering Lawsbribery or anti-corruption laws.
(k) Such Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, Sanctionsas amended (“ERISA”), and with (ii) a plan or account subject to Section 4975 of the representations and warranties contained hereinInternal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(l) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.[ ], as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder Shareholder, if it is an Other Selling Shareholder, is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of To the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate knowledge of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time proceeds of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder offering will not, directly or indirectly, use the proceeds of the offeringbe used, or lendlent, contribute contributed or otherwise make made available such proceeds to any subsidiary, joint venture partner or other Person.:
(iA) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, is the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iiiB) in any other manner that would cause or will result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kii) Such Neither the Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or nor any of its subsidiaries with respect will use, to the Anti-Corruption Lawsits knowledge, directly or indirectly, the Anti-Money Laundering Laws proceeds of the offering in furtherance of an offer, payment, promise to pay, or Sanctions is pending orauthorization of the payment or giving of money, or anything else of value, to the knowledge any person in violation of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Antiany applicable anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereincorruption laws.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly with the other Selling Shareholders, represents and warrants to and agrees with each of the Underwriters on the date hereof, on the Closing Date and on each Option Closing Date, if any, that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder Shareholder, and is the a valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company[Computershare, N.A.Inc.], as Custodian, relating to the deposit of the Shares 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-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.
(c) Neither the execution and delivery by such Selling Shareholder of, nor the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement and the Power of Attorney will not contravene any provision of applicable lawconflict with, contravene, result in a breach or violation of, or the certificate imposition of incorporationany lien, by-laws charge or similar constitutional document encumbrance upon any assets of such Selling Shareholder (if such Selling Shareholder is not a natural person)pursuant to, or constitute a violation, breach or default under (i) any agreement or other instrument binding upon such Selling Shareholder or any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over such Selling Shareholder; or (ii) any contract, agreement, obligation, covenant or instrument to which such Selling Shareholder (or any of his assets) is subject or bound; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its his obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky blue sky laws of the various states jurisdictions in connection with the offer and sale of the Shares.
(cd) Such Selling Shareholder now and, on the Closing Date and on each Option Date, will be the lawful owner of the number of Shares to be sold by such Selling Shareholder pursuant to this Agreement, and has, and on the Closing Date and on each Option Closing Date will have, valid marketable title to, or a valid “security entitlement” (within the meaning of Section Sections 8-102 and 8-501 of the New York Uniform Commercial Code (the “UCC”)) in respect of, the number of Shares to be sold by such Selling Shareholder Shareholder, free and clear of all security interests“adverse claims” (within the meaning of Section 8-102 of the UCC), claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by 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 claim” (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (Ai) DTC shall be a “protected purchaser” of such Shares (within the meaning of Section 8-303 of the UCC), (Bii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares Shares, and (Ciii) no action based on any “adverse claim”, ” (within the meaning of Section 8-102 of the UCC, ) to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate articles of incorporation, bylaws and applicable law, (yx) DTC will be registered as a “clearing corporation” (within the meaning of Section 8-102 of the UCC and UCC), (zy) appropriate entries to the accounts of each of the several Underwriters on the records of DTC will have been made pursuant to the UCC, and (z) DTC’s jurisdiction for purposes of Section 8-110 of the UCC is the State of New York.
(f) Such Selling Shareholder is not prompted by any information concerning has not, prior to the Company or its subsidiaries which is not set forth in the Time execution of Sale Prospectus to sell its Shares pursuant to this Agreement, offered or sold any Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the then most recent Preliminary Prospectus.
(g) Neither such Selling Shareholder nor any of his affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with any member firm of FINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(h) Such Selling Shareholder has not, directly or indirectly, taken any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(i) Each documentSuch Selling Shareholder (i) does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, if anyexcept for such rights as are described in the Registration Statement, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, under “Shares Eligible for Future Sale,” (ii) each part does not have any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Shareholders to the Underwriters pursuant to this Agreement, except for such rights as such Selling Shareholder has waived prior to the date hereof and as have been described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and (iii) does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement, the Time of Sale Prospectus or the Prospectus.
(j) Such Selling Shareholder is not currently subject to any U.S. sanctions administered by OFAC and will not directly or indirectly use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, or any joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(i) The Registration Statement, when such part it became effectiveeffective and at the time of execution of this Agreement, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, ; (iiiii) at no time during the Registration Statement as period that begins on the date of the date hereof does not Preliminary Prospectus and ends immediately prior to the execution of this Agreement did the Preliminary Prospectus 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 therein, in the light of the circumstances under which they were made, not misleading, ; (iviii) the Time of Sale Prospectus does not, and at the time Time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and Sale, at the Closing Date (as defined in Section 5)and, if applicable, each Option Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided and (v) the Prospectus, as of the date it is filed with the Commission pursuant to Rule 424(b) under the Securities Act, at the Closing Date and at each Option Closing Date, if any, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this Section 2(g2(k) are limited exclusively to statements or omissions of material fact made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder expressly for use thereinin the Registration Statement, the Preliminary Prospectus, the Time of Sale Prospectus, the road show or the Prospectus, it being understood and agreed that the only such information furnished by or on behalf of any Selling Shareholder consists of the legal name and address of, and the number of shares beneficially owned and offered by such Selling Shareholder, and the other information with respect to such Selling Shareholder that appears under the caption “Principal and Selling Shareholders” in the Registration Statement, the Preliminary Prospectus, the Time of Sale Prospectus and the Prospectus and, if such Selling Shareholder is an executive officer or director of the Company, the information with respect to such Selling Shareholder that described as such appears under the caption “Management” in Section 11(b) hereofthe Registration Statement, the Preliminary Prospectus, the Time of Sale Prospectus and the Prospectus (the “Selling Shareholder Information”).
(hl) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect. Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of prompted by any information concerning the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder Company or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person which is not set forth in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectlyRegistration Statement, the power to direct or cause the direction Time of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements Sale Prospectus and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, Prospectus to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified sell his Shares pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria)this Agreement.
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.[—], as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iviii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein, provided that all of the representations and warranties set forth in this paragraph 2(g) are limited exclusively to statements or omissions of material facts 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 thereinin the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, taking into account any written updates to such information provided by such Selling Shareholder prior to the date of the Time of Sale Prospectus, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan furnished by or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative on behalf of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval consists of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge name of such Selling Shareholder, threatened. Such the number of Shares offered by such Selling Shareholder and its subsidiaries the address and affiliates have instituted other information with respect to such Selling Shareholder (excluding percentages) that appear in the table (and maintained corresponding footnotes) under the caption “Principal and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with Selling Stockholders” in the Anti-Corruption Laws, Prospectus (the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein“Selling Shareholder Information”).
Appears in 1 contract
Sources: Underwriting Agreement (Portola Pharmaceuticals Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each warrants, as of the Underwriters date hereof and as of the Closing Date, to the Company and the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances. Such Selling Shareholder has, and on the Closing Date will have, the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares, except such as have been obtained and are in full force and effect at or prior to the Closing Date or as may be required under the Securities Act, applicable state securities or Blue Sky laws, the NASDAQ Global Market and from FINRA.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder[Reserved].
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occuroccurs, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries Subsidiaries which is not set forth in the Time of Sale Registration Statement, the Preliminary Prospectus or the Final Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each documentAs of the effective date of the Registration Statement and any amendments thereto, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus Registration Statement complied or will comply when so filed in all material respects with the Exchange Securities Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of and the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Final Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Final Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided provided, however, that the such representations and warranties set forth in this Section 2(g) are limited apply only to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by such the Selling Shareholder Shareholders expressly for use thereinin the Registration Statement, the Time of Sale Prospectus or the Final Prospectus, it being understood and agreed that the only such information is furnished by the Selling Shareholders consists only of (A) the legal name and address of the Selling Shareholders set forth under the caption “Selling Stockholders” and (B) the number of Shares owned by the Selling Shareholders before and after the offering (excluding percentages) that described as such appears in Section 11(bthe table (and corresponding footnotes) hereof.
under the caption “Selling Stockholders” (h) Such collectively, the “Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseInformation”).
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, Cuba, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba14065 and non-government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For Since the past five yearsmore recent of April 24, 2019 or 10 years prior to the date of the Agreement, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(ja) Such None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds to any Government Official in order to influence official action, or to any person in violation of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business U.S. Foreign Corrupt Practices Act of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is1977, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in UK Bribery Act 2010, and any other manner that would cause applicable law, regulation, order, decree or result in a violation directive having the force of any Anti-Corruption Laws, Anti-Money Laundering Laws, law and relating to bribery or Sanctions by any Person corruption; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and each of its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such Selling Shareholder, threatened. .
(i) Such Selling Shareholder represents and its subsidiaries and affiliates have instituted and maintained and will continue warrants that it is not (i) an employee benefit plan subject to maintain policies and procedures reasonably Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) The Selling Shareholder has not taken, directly or indirectly, any action designed to promote and achieve compliance with or that could reasonably be expected to cause or result in any stabilization or manipulation of the Anti-Corruption Laws, price of the Anti-Money Laundering Laws, Sanctions, and with Shares in violation of Regulation M under the representations and warranties contained hereinExchange Act.
Appears in 1 contract
Sources: Underwriting Agreement (Fox Corp)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) any provision of applicable law, or (ii) the operating agreement, limited liability company agreement, partnership agreement, certificate of incorporation, by-laws or similar constitutional other equivalent document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling ShareholderShareholder except in the case of clauses (iii) and (iv) as would not, individually or in the aggregate, have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated by this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) Such Selling Shareholder is not prompted by any information concerning has delivered to the Company or its subsidiaries which is not set forth Representative an executed lock-up agreement in substantially the Time of Sale Prospectus to sell its Shares pursuant to this form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such any Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such furnished by the Selling Shareholders consists of the following information in Section 11(b) hereof.
(h) Such the Prospectus furnished on behalf of each Selling Shareholder: the name and address of each Selling Shareholder, the number of shares to be sold by each Selling Shareholder is not and any footnotes regarding beneficial ownership related thereto (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseSelling Shareholder Information”).
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is 50% or more owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (at present, including, without limitation, the so-called Donetsk People’s Republic, Republic and the so-called Luhansk People’s RepublicRepublic regions of Ukraine, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or knowingly indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions in violation of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, such Such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions in violation of Sanctions.
(ja) Such None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative or controlled affiliate, in each case in their capacity as such, has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds of the offeringto any Government Official in order to influence official action, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or person in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Antiapplicable anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person corruption laws; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and each of its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such the Selling Shareholder, threatened. .
(vi) Such Selling Shareholder represents and its subsidiaries and affiliates have instituted and maintained and will continue warrants that it is not (i) an employee benefit plan subject to maintain policies and procedures reasonably designed Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to promote and achieve compliance with Section 4975 of the AntiInternal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-Corruption Laws101, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinor otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (CCC Intelligent Solutions Holdings Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by or on behalf of such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare American Stock Transfer & Trust Company, N.A.LLC, as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the case of clauses (iii) and (iv) as would not, individually or in the aggregate, have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement, the Custody Agreement and the Power of Attorney, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as have been obtained and made under the Securities Act, such as may be required by the Exchange Act or the rules and regulations thereunder or may be required by the securities or Blue Sky laws of the various states or non-US jurisdictions in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, enforceable against such Selling Shareholder, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Prospectus Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, will not contain as of the date of any amendment or supplement any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section 2(g) are limited paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus, Prospectus or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein and further limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder Stockholder expressly for use thereinin the Registration Statement, the roadshow or any Prospectus or any amendment or supplement thereto, it being understood and agreed that the only information furnished by such ▇▇▇▇▇▇▇ Shareholder consists of the name of such Selling Shareholder, the number of offered shares and the address and other information is that described as with respect to such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1excluding percentages) an employee benefit plan subject which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (with respect to Title I of ERISAeach Selling Stockholder, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseSelling Shareholder Information”).
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(jii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.:
(iA) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, is the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iiiB) in any other manner that would cause or will result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kiii) Such For the past 5 years, such Selling Shareholder and its subsidiaries have conducted has not knowingly engaged in, is not now engaged in, and will conduct their businesses not knowingly engage in, any dealings or transactions with any Person, or in compliance with any country or territory, that at the Anti-Corruption Laws, time of the Anti-Money Laundering Laws, and dealing or transaction is or was the subject of Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving .
(a) None of such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Lawsor controlled affiliates, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) such Selling Shareholder and each of its subsidiaries and controlled affiliates have conducted their businesses in compliance with applicable anti-corruption laws; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(j) Such Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) Such Selling Shareholder has not taken, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
(l) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Australia or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and affiliates have instituted delivery of the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and maintained and will continue delivery of the Shares by the Underwriters in the manner contemplated herein.
(m) Such Selling Shareholder has the power to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctionssubmit, and with pursuant to Section 18(a) has, to the representations extent permitted by law, legally, validly, effectively and warranties contained hereinirrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 18(a)), and has the power to designate, appoint and empower, and pursuant to Section 18(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Sources: Underwriting Agreement (BigCommerce Holdings, Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.[—], as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (CB) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to Neither the Exchange Act and incorporated by reference in Registration Statement nor the Time of Sale Prospectus or the Prospectus complied any amendments or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain supplements thereto includes any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit 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, ; and (vii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in clauses (i) and (ii) of this Section 2(gsubsection (f) are limited apply only 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 Time of Sale Prospectus, the Prospectus, each broadly available road show, or any amendments other issuer free writing prospectus or supplements any amendment or supplement thereto based upon information relating to such (the “Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.Information”)
(hg) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of prompted by any information concerning the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder Company or its subsidiaries or affiliates, or which is not set forth in the Time of Sale Prospectus to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of sell its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified Shares pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria)this Agreement.
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders, including the Founders, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.____________, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”"CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as such Selling Shareholder’s '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”"POWER OF ATTORNEY") will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, fully paid and non-assessable.
(e) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(ef) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectuscomply and, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a comply in all material fact or omit to state a material fact necessary to make respects with the statements therein, in Securities Act and the light applicable rules and regulations of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading Commission thereunder and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through you expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and the Agreement and Power of Attorney appointing certain individuals as such Selling Shareholder’s 's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “"Power of Attorney”") will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states or any applicable law, rule or regulation of any foreign jurisdiction in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date and the Option Closing Date (as defined in Section 3 hereunder) will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code of the State of Delaware (the "UCC") in respect of, the Shares (other than Shares subject to stock options or restricted stock awards granted pursuant to the Company's Omnibus Stock Plan (the "Stock Option Plan")) to be sold by such Selling Shareholder and on the Closing Date and the Option Closing Date, with respect to Shares subject to restricted stock awards granted pursuant to the Stock Option Plan, upon the lapse of any vesting restrictions on Shares subject to such restricted stock awards and, with respect to Shares subject to stock options granted pursuant to the Stock Option Plan, upon payment of the exercise price for any Shares to be issued upon exercise of such options in accordance with the terms of the Stock Option Plan, will have valid title to or a valid "security entitlement" within the meaning of Section 8-501 of the UCC, 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 lawlaw or the certificate of incorporation or by-laws or other organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural person), to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have has been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by 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 The Depository Trust Company (“"DTC”"), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “"protected purchaser” " of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “"adverse claim”", within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s 's share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “"clearing corporation” " within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood the Prospectus or any amendments or supplements thereto.
(g) Such Selling Shareholder has not taken and agreed that will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the only such information is that described as such in Section 11(b) hereofprice of any security of the Company or CME to facilitate the sale or resale of the Shares.
(h) Such In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Shareholder is not will deliver to the Representatives prior to or at the Closing Date a properly completed and executed U.S. Treasury Department Form W-9 (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of other applicable form or statement specified by the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseU.S. Treasury Department regulations in lieu thereof).
(i) Neither Except as disclosed by such Selling Shareholder in writing to the Representatives, neither such Selling Shareholder nor any of his, her or its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to payaffiliates directly, or authorization indirectly through one or approval of the paymentmore intermediaries, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that iscontrols, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republicby, or is under common control with, or has any other Covered Region association with (within the meaning of Ukraine identified pursuant to Executive Order 14065Article 1(q) of the By-laws of the National Association of Securities Dealers, Crimea, Cuba, Iran, North Korea and SyriaInc. (the "NASD").
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in), any dealings or transactions with any Person, or in any country or territory, that at the time member firm of the dealing or transaction is or was the subject of SanctionsNASD.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Chicago Mercantile Exchange Holdings Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriters, severally and with respect to such Selling Shareholder only, that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and will on the Closing Date will (with respect to the Shares) and on any Option Closing Date (with respect to the Additional Shares) have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and law to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(eb) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (Ai) 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 (Ciii) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not not, as of the applicable effective date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g2(c) are limited to statements or omissions of material facts made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither furnished by such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval consists of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge name of such Selling Shareholder, threatened. Such the number of offered Shares and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the table (and its subsidiaries corresponding footnotes) under the caption “Principal and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with Selling Shareholders” in the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinProspectus.
Appears in 1 contract
Sources: Underwriting Agreement (Google Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder (a) TBI represents and warrants to and agrees with each of the Underwriters that:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling ShareholderTBI.
(bii) The execution and delivery by such Selling Shareholder TBI of, and the performance by such Selling Shareholder TBI of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, law or the certificate partnership agreement of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), TBI or any agreement or other instrument binding upon such Selling Shareholder TBI or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling ShareholderTBI, except to the extent a consent or waiver has been obtained and remains in full force and effect; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder TBI of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(ciii) Such Selling Shareholder hasTBI is, and on the Closing Date (as defined below) or any Option Closing Date (as defined below), as the case may be, will havebe, valid title to, or a valid “security entitlement” within the meaning record owner of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder TBI, free and clear of all security interests, claims, liens, equities or other encumbrances (other than pursuant to this Agreement), and has duly endorsed such Shares in blank; and TBI has the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesTBI.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(eiv) Upon payment for the Shares to be sold by such Selling Shareholder TBI 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 The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlementShares; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fv) Such Selling Shareholder TBI is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(gvi) (iA) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading ; and (viB) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(a)(vi) are limited to statements or omissions made in reliance upon information relating to TBI furnished to the Company in writing by TBI expressly for use in the Registration Statement, Time of Sale Prospectus, the Prospectus, Prospectus or any amendments or supplements thereto thereto.
(vii) TBI has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of its Shares.
(viii) Except as disclosed by TBI in writing to M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated (“M▇▇▇▇▇ S▇▇▇▇▇▇”), neither TBI nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the meaning of Article 1(q) of the Bylaws of the National Association of Securities Dealers, Inc. (the “NASD”)), any member firm of the NASD.
(b) Each Management Selling Shareholder represents and warrants to and agrees with each of the Underwriters that, with respect to such Management Selling Shareholder only:
(i) This Agreement has been duly authorized, executed and delivered by or on behalf of such Management Selling Shareholder.
(ii) The execution and delivery by such Management Selling Shareholder of, and the performance by such Management Selling Shareholder of its obligations under, this Agreement, the Stock Custody Agreement signed by such Management Selling Shareholder and EquiServe Trust Company, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Management Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Management Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene (A) any provision of applicable law, (B) any agreement or other instrument binding upon such Management Selling Shareholder, except to the extent a consent or waiver has been obtained and remains in full force and effect or (C) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Management Selling Shareholder, except where such contravention would not impact in any material respect the consummation of such Management Selling Shareholder’s obligations under this Agreement, the Custody Agreement or such Management Selling Shareholder’s Power of Attorney; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Management Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Management Selling Shareholder, except such as may be required by the Securities Act, the Exchange Act, the securities or Blue Sky laws of any jurisdiction, or the rules and regulations of the NASD in connection with the offer and sale of the Shares.
(iii) Such Management Selling Shareholder is, and on the Closing Date will be, the record owner of the Shares to be sold by such Management Selling Shareholder (in the case of an individual, either individually or jointly with such individual’s spouse), free and clear of all security interests, claims, liens, equities or other encumbrances, and has duly endorsed such Shares in blank; and such Management Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney of such Management Selling Shareholder and to sell, transfer and deliver the Shares to be sold by such Management Selling Shareholder.
(iv) The Custody Agreement and the Power of Attorney of such Management Selling Shareholder have been duly authorized, executed and delivered by such Management Selling Shareholder and are valid and binding agreements of such Management Selling Shareholder.
(v) Upon payment for the Shares to be sold by such Management Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede or such other nominee as may be designated by DTC, registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (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 Shares; for purposes of this representation, such Management Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(vi) (A) Such Management Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Prospectus that has had, or may have, a material adverse effect on the WellCare Group; and (B) such Management Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Prospectus or the Registration Statement to sell its Shares pursuant to this Agreement.
(vii) (A) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (B) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(b)(vii) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through you expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(hviii) Such Management Selling Shareholder has not taken and will not take, directly or indirectly, any action which is not (1) an employee benefit plan subject designed to Title I of ERISA, (2) a plan or account subject which has constituted or which might reasonably be expected to Section 4975 cause or result in stabilization or manipulation of the Code or (3) an entity deemed to hold “plan assets” price of any such plan security of the Company to facilitate the sale or account under Section 3(42) resale of ERISA, 29 C.F.R.2510.3-101, or otherwiseits Shares.
(iix) Neither Except as disclosed by such Management Selling Shareholder in writing to M▇▇▇▇▇ S▇▇▇▇▇▇, neither the Management Selling Shareholder nor any of his, her or its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to payaffiliates directly, or authorization indirectly through one or approval of the paymentmore intermediaries, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that iscontrols, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republicby, or is under common control with, or has any other Covered Region association with (within the meaning of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and SyriaArticle 1(q) of the Bylaws of the NASD).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time member firm of the dealing or transaction is or was the subject of SanctionsNASD.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Wellcare Health Plans, Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder hereby represents and warrants warrants, severally as to itself and agrees with not jointly, to each of Underwriter on the Underwriters date hereof, and shall be deemed to represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, that:
(a) This Agreement has been duly authorized, executed and delivered Such Selling Shareholder is the lawful owner of the Shares to be sold by or on behalf of such Selling Shareholder pursuant to this Agreement and is has, and on the Closing Date and the Additional Closing Date, as the case may be, will have, good and valid title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and binding agreement of such Selling Shareholderclaims whatsoever.
(b) The execution and delivery by such Such Selling Shareholder ofhas, and on the performance Closing Date and the Additional Closing Date, as the case may be, will have, full legal right, power and authority, and all authorization and approval required by such Selling Shareholder of its obligations underlaw, to enter into (i) this Agreement, (ii) the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.[ ], as custodian (the “Custodian”), relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and (iii) the Power of Attorney appointing certain individuals named therein as such Selling Shareholder’s attorneys-in-fact (the “Attorneys”) to the extent set forth therein, therein relating to the transactions contemplated hereby and by the Registration Statement Prospectus (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Sharesthe manner provided herein.
(dc) The Each of the Agreement, the Custody Agreement and the Power of Attorney have of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and are is a valid and binding agreements agreement of such Selling Shareholder.
, enforceable as to such Selling Shareholder in accordance with its terms, except to the extent enforceability may be limited by (ei) Upon payment for the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which a proceeding may be brought, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and, pursuant to such Power of Attorney, such Selling Shareholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Shareholder’s behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Shareholder pursuant to this Agreement.
(d) None of the sale of the Shares by such Selling Shareholder, the execution, delivery or performance by such Selling Shareholder of this Agreement, the Custody Agreement and Power of Attorney of such SharesSelling Shareholder by or on behalf of such Selling Shareholder, as directed the compliance by such Selling Shareholder with all the Underwritersprovisions hereof and thereof nor the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby (i) requires any consent, to Cede & Co. approval, authorization or other order of, or registration or filing with, any court, regulatory body or administrative agency or other governmental body, agency or official (“Cede”) or except such other nominee as may be designated by required under the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede securities or such other nominee and the crediting of such Shares on the books of DTC to securities accounts Blue Sky laws of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))various states), (Aii) DTC shall be conflicts with or will conflict with or constitutes or will constitute a “protected purchaser” breach of or a default under, the organizational documents of such Shares within the meaning of Section 8-303 of the UCCSelling Shareholder, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of if such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted an individual, or any agreement, indenture, lease or other instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or any information concerning the Company property of such Selling Shareholder is bound or its subsidiaries which is not set forth in the Time (iii) violates any statute, law, regulation, ruling, filing, judgment, injunction, order or decree applicable to such Selling Shareholder or any property of Sale Prospectus to sell its Shares pursuant to this Agreementsuch Selling Shareholder.
(ge) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference The information in the Time Prospectus under the caption “Security Ownership of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act Certain Beneficial Owners, Management and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when Selling Shareholders” that specifically relates to such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus Selling Shareholder does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is will not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5), or the Time of Sale ProspectusAdditional Closing Date, as then amended or supplemented by the Company, if applicable, will notcase may be, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) At any time prior to the Closing Date or the Additional Closing Date, (v) each broadly available road showas the case may be, if any, when considered together with the Time of Sale Prospectus, does not contain there is any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, change in the light information referred to in Section 6.2(e) hereof, such Selling Shareholder will immediately notify the Representative of such change.
(g) Other than excepted activity pursuant to Regulation M under the circumstances under which they were madeExchange Act, such Selling Shareholder has not misleading taken and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain take, directly or indirectly, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided action that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectusconstituted, or any amendments action designed to, or supplements thereto based upon information relating that might reasonably be expected to such Selling Shareholder furnished cause or result in or constitute, under the Act or otherwise, stabilization or manipulation of the price of the Common Stock to facilitate the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that sale or resale of the only such information is that described as such in Section 11(b) hereofShares.
(h) Such Upon delivery of and payment for the Shares to be sold by such Selling Shareholder is not (1) an employee benefit plan subject pursuant to Title I this Agreement, good and valid title to such Shares will pass to the Underwriters, free of ERISAall restrictions on transfer, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISAliens, 29 C.F.R.2510.3-101encumbrances, or otherwisesecurity interests, equities and claims whatsoever.
(i) Neither such Such Selling Shareholder nor does not have any of its subsidiaries registration or controlled affiliates, nor other similar rights to have any of their directors equity or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity debt securities registered for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action sale by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate under the Registration Statement or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times included in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled offering contemplated by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctionsthis Agreement.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds has no reason to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner believe that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties of the Company contained hereinin Section 6.1 hereof are not true and correct, is familiar with the Registration Statement and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement or the Prospectus that has had or may have a Material Adverse Effect, and is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement.
Appears in 1 contract
Sources: Underwriting Agreement (First Guaranty Bancshares, Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally and not jointly represents and warrants to and agrees with each of the Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The None of the execution and delivery by such Selling Shareholder of, and or the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.The Bank of New York, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”"CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as such Selling Shareholder’s 's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power "POWER OF ATTORNEY"), nor the consummation of Attorney”the transactions contemplated hereby or thereby, will (i) will not contravene any provision of applicable lawor result in a breach or violation of, or constitute a default under, (A) the certificate memorandum of incorporationassociation, bybye-laws or similar constitutional document other governing documents of such Selling Shareholder (if such Selling Shareholder is not a natural person), (B) any provision of applicable law or any agreement or other instrument binding upon such Selling Shareholder or any regulation, rule, judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling ShareholderShareholder or any of its properties or (C) any agreement, and no consent, approval, authorization indenture or order of, or qualification with, any governmental body or agency is required for the performance by other instrument binding upon such Selling Shareholder or to which such Selling Shareholder is a party or to which any of its obligations under this Agreementproperties are subject, or (ii) result in the Custody Agreement creation or Power imposition of Attorney any lien, charge, claim or encumbrance upon any property of such Selling Shareholder, except (other than with respect to clause (i)(A)) as would not, individually or in the aggregate, have a material adverse effect on the ability of such as may be Selling Shareholder to consummate the transactions contemplated hereby and thereby. Except for permits, consents, approvals and similar authorizations required by the securities or "Blue Sky Sky" or insurance securities laws of the various states certain jurisdictions in connection with the offer and sale of the Shares, the filing of the Prospectus under the Bermuda Companies Act 1981 in connection with the offer and sale of the Shares and permits, consents, approvals and authorizations which have been obtained, no permit, consent, approval, authorization or order of any court, governmental agency or body or financial institution is required in connection with the consummation by such Selling Shareholder of the transactions contemplated by this Agreement.
(c) Such Selling Shareholder hasis, and on the Closing Date will havebe, valid title tothe registered holder of a certificated security representing, or and/or has and will have a valid “"security entitlement” " within the meaning of Section 8-501 102(a)(7) of the New York Uniform Commercial Code (the "NYUCC") in respect of, the Shares to be sold by such Selling Shareholder Shareholder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances, and such Selling Shareholder's entry into this Agreement, the Custody Agreement and the Power of Attorney and such Selling Shareholder's sale, transfer and delivery of the Shares to be sold by such Selling Shareholder have been duly authorized by all necessary organizational action, if any, and have received all necessary regulatory approvals and authorizations, if any, and such Selling Shareholder has the legal right and power, and all authorization and approval required by law, power to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares. The Shares to be sold by such Selling Shareholder are not subject to any preemptive or similar rights.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, except as rights to indemnification thereunder may be limited by applicable law and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting rights and remedies of creditors or by general equitable principles.
(e) Upon payment for the delivery in New York of any certificate or certificates representing a Selling Shareholder's Shares to be sold by such Selling Shareholder pursuant to this AgreementShareholder, delivery of such Shares, as directed properly indorsed in blank by the Underwritersan effective indorsement, to either (i) Cede & Co. (“Cede”"CEDE") or such other nominee as may be designated by the The Depository Trust Company (“"DTC”)") or (ii) the Underwriter purchasing such Shares, registration of and upon payment for such Shares in the name of as contemplated by this Agreement, Cede (or such other nominee and nominee) or such Underwriter, as the crediting case may be, will acquire all of such Selling Shareholder's rights in such Shares on that such Selling Shareholder has or has the books power to transfer, free of DTC to securities accounts any adverse claim within the meaning of Section 8-102(a)(1) of the Underwriters NYUCC, provided Cede (assuming that neither DTC nor any or such Underwriter other nominee) or such Underwriter, as the case may be, has no notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code NYUCC) to such Shares. Assuming the proper execution of an entitlement order (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 102(a)(8) of the UCC, NYUCC) given by a Selling Shareholder to the securities intermediary (B) under within the meaning of Section 8-501 102(a)(14) of the UCC, NYUCC) maintaining the Underwriters will acquire a valid security entitlement in for such Selling Shareholder with respect to the Shares to be sold by such Selling Shareholder, and assuming that as a result of the execution of such order a security entitlement with respect to such Shares and is properly credited at a securities intermediary (Cwithin the meaning of Section 8-102(a)(14) of the NYUCC) to the account of the Underwriter purchasing such Shares, upon payment for such Shares as contemplated by this Agreement, then no action based on any “an adverse claim”, claim within the meaning of Section 8-102 of the UCC, to such Shares NYUCC may be asserted against the Underwriters such Underwriter with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume entitlement to the extent that when such payment, delivery and crediting occur, (xi) such Shares will have been registered in the name Underwriter had no notice of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” such adverse claim within the meaning of Section 8-102 105 of the UCC NYUCC and (zii) appropriate entries such Underwriter is the entitlement holder (within the meaning of Section 8-102(a)(8) of the NYUCC) with respect to the accounts of the several Underwriters on the records of DTC will have been made pursuant securities account to the UCCwhich such security entitlement is credited.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, Prospectus or any person acting in an official capacity for amendments or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholdersupplements thereto.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.Mellon Investor Services LLC, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”"CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as such Selling Shareholder’s 's attorneys-in-fact to the extent set forth therein, therein relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) "POWER OF ATTORNEY"), will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional formation document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation) or the trust agreement of such Selling Shareholder (if such Selling Shareholder is a trust), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as have already been obtained or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, fully paid and non-assessable.
(e) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and general principles of equity.
(ef) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementother encumbrances.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) There are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court legal or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is proceedings pending or, to the knowledge of such Selling Shareholder, threatened. Such threatened to which such Selling Shareholder and is a party or to which any of the properties of such Selling Shareholder is subject other than proceedings that would not have a material adverse effect on the power or ability of such Selling Shareholder to perform its subsidiaries and affiliates have instituted and maintained and obligations under this Agreement or to consummate the transactions contemplated by the Prospectus.
(h) Upon Transfer (as defined below) of the Shares to The Depository Trust Company, The Depository Trust Company will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with acquire the Anti-Corruption Laws, Shares free of all adverse claims (within the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.meaning of Sections 8- 102(a)(1) and
Appears in 1 contract
Sources: Underwriting Agreement (Bunge LTD)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders severally and not jointly represents and warrants to to, and agrees with with, each of the several Underwriters and the Company that:
(a) This The Selling Shareholder has full right, power and authority to enter into this Agreement, the Power of Attorney and the Custody Agreement has (as hereinafter defined) and to sell, assign, transfer and deliver to the Underwriters the Shares to be sold by the Selling Shareholder hereunder; and the execution and delivery of this Agreement, the Power of Attorney and the Custody Agreement have been duly authorized, executed and delivered authorized by or on behalf all necessary action of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, has duly executed and the performance by such Selling Shareholder of its obligations under, delivered this Agreement, the Power of Attorney and the Custody Agreement signed by such Agreement, and each constitutes the valid and binding agreement of the Selling Shareholder and Computershare Trust Companyenforceable against the Selling Shareholder in accordance with its terms, N.A.subject, as Custodianto enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or affecting the deposit enforcement of creditors' rights generally and to general equitable principles.
(c) All consents, approvals, authorizations, orders or declarations of or from, or registration, qualification or filing with, any court or governmental agency or body required for the sale of the Shares to be sold by such the Selling Shareholder (or the “Custody consummation of the transactions contemplated by this Agreement”) and , the Power of Attorney appointing certain individuals as or the Custody Agreement, except the registration of such Selling Shareholder’s attorneys-in-fact to Shares under the extent set forth therein1933 Act (which, relating to the transactions contemplated hereby and by if the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person)effective as of the time of execution hereof, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under shall be obtained as provided in this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except ) and such as may be required by the under state securities or Blue Sky blue sky laws of the various states in connection with the offer offer, sale and sale distribution of such Shares by the Underwriters, have been obtained and are in full force and effect; such Selling Shareholder, if other than a natural person, has been duly organized and is validly existing in good standing under the laws of the Shares.
(c) Such Selling Shareholder has, jurisdiction of its organization as the type of entity that it purports to be; and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free has full legal right, power and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, authority to enter into and perform its obligations under this Agreement, the Custody Agreement and the such Power of Attorney and Custody Agreement, and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Sharesunder this Agreement.
(d) The Custody Agreement and the Power sale of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to and the performance of this Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Selling Shareholder is a party or to which any of its properties or assets is subject, nor will such action conflict with or violate any provision of the charter or bylaws or other governing instruments of the Selling Shareholder, if any, or any statute, rule or regulation or any order, judgment or decree of any court or governmental agency or body having jurisdiction over the Selling Shareholder or any of the Selling Shareholder's properties or assets.
(e) The Selling Shareholder has, and at the Closing Time (as defined in Section 3 hereof) or, at the Date of Delivery, as the case may be, the Selling Shareholder will have, good and valid title to the Shares to be sold by the Selling Shareholder hereunder, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever; and, upon delivery of such Shares against payment therefor as provided herein, good and valid title to such Shares, as directed by the Underwritersfree and clear of all liens, to Cede & Co. (“Cede”) security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities 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 claims of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)))nature whatsoever, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries pass to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCUnderwriters.
(f) Such The Selling Shareholder is has not prompted by (i) taken, directly or indirectly, any information concerning action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or its subsidiaries which is resale of the Shares; (ii) since the filing of the Registration Statement (A) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company; or (iii) has not set forth distributed and will not distribute any Prospectus or other offering material in connection with the Time offering and sale of Sale Prospectus to sell its Shares pursuant to this Agreementthe Shares.
(g) Each Selling Shareholder other than the Principal Shareholders represents and warrants that (i) Each document, if any, filed or to be filed pursuant such Selling Shareholder has carefully reviewed the Registration Statement and Prospectus and (ii) to the Exchange Act and incorporated by reference in best knowledge of such Selling Shareholder the Time of Sale Prospectus Registration Statement or any amendment thereto or any 462(b) Registration Statement or any amendment thereto or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, . The foregoing provisions of this paragraph (vg) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited apply to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, any 462(b) Registration Statement or any amendments amendment thereto or supplements the Prospectus or any amendment or supplement thereto based in reliance upon and in conformity with written information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly any Underwriter through you specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such In order to document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, each of the Selling Shareholder is not Shareholders agrees to deliver to you prior to or at the Closing Time (1) an employee benefit plan subject to Title I of ERISA, (2as hereinafter defined) a plan properly completed and executed United States Treasury Department form W-9 (or account subject to Section 4975 of the Code other applicable form or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwisestatement specified by Treasury Department regulations in lieu thereof).
(i) Neither Each of the Selling Shareholders represents and warrants that certificates in negotiable form representing all of the Shares to be sold by such Selling Shareholder nor any hereunder have been placed in custody under a custody agreement (the "Custody Agreement"), in the form heretofore furnished to and approved by you, duly executed and delivered by such Selling Shareholder to [INSERT NAME OF CUSTODIAN], as custodian (the "Custodian"), and that such Selling Shareholder has duly executed and delivered a Power of its subsidiaries or controlled affiliatesAttorney (the "Power of Attorney"), nor any of their directors or officersin the form heretofore furnished to and approved by you, nor, to appointing [INSERT NAME(S) OF ATTORNEYS-IN-FACT] as such Selling Shareholder’s knowledge's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Shareholder, any employeeto determine the purchase price to be paid by the Underwriters to the Selling Shareholders as provided in Section 3 hereof, agent or representative to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder and otherwise to act on behalf of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of connection with the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action transactions contemplated by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements Agreement and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of SanctionsCustody Agreement.
(j) Such Each of the Selling Shareholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Shareholder will not, directly or indirectly, use under the proceeds Custody Agreement are subject to the interests of the offeringUnderwriters hereunder, and that the arrangements made by such Selling Shareholder for such custody, and the appointment by such Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney, are irrevocable. Each of the Selling Shareholders specifically agrees that the obligations of the Selling Shareholders 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 estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or lendin the case of a partnership or corporation, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at by the time dissolution of such funding partnership or facilitation, iscorporation, or whose government is, by the subject occurrence of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise)event.
(k) Such Selling Shareholder and its subsidiaries have conducted will review the Prospectus and will conduct their businesses in compliance comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the AntiClosing Date and will advise one of its Attorneys-Corruption Lawsin-Fact and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. prior to the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before Closing Date if any court or governmental agency, authority or body or any arbitrator involving statement to be made on behalf of such Selling Shareholder in the certificate contemplated by Section 6(e) would be inaccurate if made as of the Closing Date.
(l) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of its subsidiaries with respect the other Selling Shareholders to the Anti-Corruption LawsUnderwriters pursuant to this Agreement; such Selling Shareholder does not have, the Anti-Money Laundering Laws or Sanctions is pending or, has waived prior to the knowledge date hereof, any registration right or other similar right to participate in the offering made by the Prospectus, other than such rights of participation as have been satisfied by the participation of such Selling Shareholder, threatened. Such Shareholder in the transactions to which this Agreement relates in accordance with the terms of this Agreement; and such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue does not own any warrants, options or similar rights to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctionsacquire, and with does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the representations Company, other than those described in the Registration Statement and warranties contained hereinthe Prospectus.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document other comparable documents of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation or other entity), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the conduct rules of the NASD and by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares (or, in the case of any such Shares underlying options, such options are, and on the Closing Date will be, presently exercisable and such Selling Shareholder is the record and beneficial owner of such options and, upon the exercise of such options on the Closing Date, will be the record and beneficial owner of such underlying Shares) 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) Such Selling Shareholder (other than Rustic Canyon Ventures LP, SOFTBANK Capital Partners LP, SOFTBANK Capital LP, SOFTBANK Capital Advisors Fund LP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Prospectus that has had, or is reasonably likely to have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder (other than Rustic Canyon Ventures LP, SOFTBANK Capital Partners LP, SOFTBANK Capital LP, SOFTBANK Capital Advisors Fund LP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) is not prompted by any information known to it concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither provided by such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval consists of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge name of such Selling Shareholder, threatened. Such the number of offered Shares and the other information with respect to such Selling Shareholder (excluding percentages) which appear in the tables under “Principal Stockholders” and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with “Selling Stockholders” in the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinProspectus.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) Such Selling Shareholder now has, and on the Closing Date and any Option Closing Date will have, valid and marketable title to the Shares to be sold by such Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) Such Selling Shareholder now has, and on the Closing Date and any Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement has and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is are the valid and binding agreement agreements of such Selling ShareholderShareholder enforceable against such Selling Shareholder in accordance with their terms, except to the extent enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally or by general equitable principles.
(bd) The Neither the execution and delivery of this Agreement or the Custody Agreement by or on behalf of such Selling Shareholder of, and nor the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit consummation of the Shares to be sold transactions herein or therein contemplated 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document on behalf of such Selling Shareholder (if such Selling Shareholder is not a natural person), or i) requires any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, official (except such as may be required by under the Act or such as may be required under state securities or Blue Sky laws of governing the various states in connection with the offer purchase and sale distribution of the Shares.
) or (cii) Such Selling Shareholder has, and on the Closing Date conflicts or will have, valid title toconflict with or constitutes or will constitute a breach of, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect ofdefault under, the Shares or violates or will violate, any agreement, indenture or other instrument to be sold by which such Selling Shareholder free and clear is a party or by which such Selling Shareholder is or may be bound or to which any of all security interestssuch Selling Shareholder's property or assets is subject, claimsor any statute, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, rule, regulation, ruling, judgment, injunction, order or decree applicable to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements to any property or assets of such Selling Shareholder.
(e) Upon payment for The Registration Statement and the Shares Prospectus, insofar as they contain information relating to be sold by such Selling Shareholder pursuant to this AgreementShareholder, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee do not and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(iiif) Such Selling Shareholder does not have any knowledge or any reason to believe that the Registration Statement as of or the date hereof does not contain Prospectus (or any amendment or supplement thereto) contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(ivg) The representations and warranties of such Selling Shareholder in the Time of Sale Prospectus does notCustody Agreement are, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5)and any Option Closing Date will be, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading true and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofcorrect.
(h) Such Selling Shareholder is does not (1) an employee benefit plan subject have any knowledge or any reason to Title I of ERISA, (2) a plan or account subject to Section 4975 believe that the representations and warranties of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseCompany in this Agreement are not true and correct.
(i) Neither such Such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of valuenot taken, directly or indirectly, any action designed to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order that might reasonably be expected to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation stabilization or manipulation of any Antithe price of the Common Stock to facilitate the sale or resale of the Shares, except for the lock-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating up arrangements described in the offering, whether as underwriter, advisor, investor or otherwise)Prospectus.
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Outsource International Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, under this Agreement, the Custody Agreement signed by such Selling Shareholder do not and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not (i) contravene any provision of applicable law, or the certificate of incorporation, or certificate of formation, or by-laws laws, or similar constitutional document operating agreement or other constitutive documents of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation or other entity), or (ii) conflict with or constitute a breach of, or default under, 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, or result in the creation or imposition of any tax (other instrument binding than New York State Stock Transfer Tax), lien, charge or encumbrance upon the Shares to be sold by such Selling Shareholder or (iii) contravene any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, ; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as have been already obtained or as may be required by the Exchange Act, the securities laws or Blue Sky laws of the various states jurisdictions and any consent or approval required by the NASD in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code as in effect in the State of New York (the “UCC”) in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered Shares to be sold by such Selling Shareholder pursuant to this Agreement are certificated securities, or will be certificated securities upon exercise of options on or prior to the Closing Date, in registered form and are valid not held in any securities account or by or through any securities intermediary within the meaning of the UCC and binding agreements certificates for all of the Shares to be sold by such Selling ShareholderShareholder pursuant to this Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been, or will be prior to the Closing Date, placed in custody with Mellon Investor Services, the Transfer Agent, with instructions to deliver such Shares to the Underwriters pursuant to this Agreement.
(e) Upon payment of the purchase price 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 The Depository Trust Company (“DTC”) (unless delivery of such Shares is unnecessary because such Shares are already in possession of Cede or such nominee), registration of such Shares in the name of Cede or such other nominee (unless registration of such Shares is unnecessary because such Shares are already registered in the name of Cede or such nominee), and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim (claim,” within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))UCC , to such Shares), (A) DTC shall be a “protected purchaser,” of such Shares within the meaning of Section 8-303 of the UCC, of such Shares and will acquire its interest in the Shares (including, without limitation, all rights that such Selling Shareholder had or has the power to transfer in such Shares) free and clear of any adverse claim within the meaning of Section 8-102 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 (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares 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 Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not materially true and correct, is familiar with the Registration Statement, the General Disclosure Package and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Prospectus or General Disclosure Package that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Registration Statement, the General Disclosure Package and the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendment, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section paragraph 2(g) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for the use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofProspectus or any amendments or supplements thereto.
(h) Such Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is not (1) an employee benefit plan subject designed to Title I of ERISA, (2) a plan or account subject which has constituted or would be expected to Section 4975 cause or result in stabilization or manipulation of the Code or (3) an entity deemed to hold “plan assets” price of any such plan security of the Company to facilitate the sale or account under Section 3(42) resale of ERISA, 29 C.F.R.2510.3-101, or otherwisethe Shares.
(i) Neither Except as previously disclosed to the Representatives, neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to payaffiliates directly, or authorization indirectly through one or approval of the paymentmore intermediaries, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that iscontrols, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republicby, or any other Covered Region is under common control with, or is a person associated with (within the meaning of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and SyriaArticle I(dd) of the By-laws of the NASD).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time member firm of the dealing or transaction is or was the subject of SanctionsNASD.
(j) Such Selling Shareholder will not, directly or indirectly, use represents that it has not made any offer relating to the proceeds Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 of the offeringSecurities Act, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act, required to be filed with the Commission. Any certificate signed by or result in on behalf of a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder as such and its subsidiaries have conducted delivered to the Representatives or to counsel for the Underwriters pursuant to the terms of this Agreement shall be deemed a representation and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding warranty by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, Underwriters as to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinmatters covered thereby.
Appears in 1 contract
Sources: Purchase Agreement (Herbalife Ltd.)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ individually represents and warrants to the Underwriter, the Purchasers and agrees with their permitted assigns, and acknowledges that each of the Underwriters them is relying upon such representations and warranties in purchasing Special Warrants, that:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of such the Selling Shareholder is or at the Closing Time will be the direct registered and is beneficial owner of and has or will have at the Closing Time valid and binding agreement marketable title to sufficient Underlying Securities free and clear of such Selling Shareholder.any lien, claim, security interest or other encumbrance, including, without limitation, any restrictions on transfer, to satisfy its obligation upon exercise of the Secondary Special Warrants and the Warrant Shares issuable upon exercise of the Warrants comprising the Secondary Special Warrants;
(bii) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), in possession of any material information concerning the business or any agreement or other instrument binding upon such affairs of the Company which has not been disclosed to the Underwriter;
(iii) the Selling Shareholder has or any judgmentwill have at the Closing Time full legal right, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholderpower and authorization, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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 sell, assign, transfer and deliver such Selling Shareholder's Secondary Special Warrants in the manner provided in this Agreement and upon delivery of and payment for such Selling Shareholder's Secondary Special Warrants hereunder the Purchasers thereof will acquire valid and marketable title to such Selling Shareholder's Secondary Special Warrants free and clear of any lien, claim, security interest, or other encumbrance;
(iv) each of this Agreement, the Custody Special Warrant Indenture, the Escrow Agreement, the Warrant Indenture and the Subscription Agreements has duly authorized and duly executed and delivered by the Selling Shareholder and constitutes a valid and binding obligation of the Selling Shareholder enforceable against such Selling Shareholder in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law;
(v) the execution and delivery of this Agreement, the Special Warrant Indenture, the Warrant Indenture, the Escrow Agreement and the Power Subscription Agreements by the Selling Shareholder, the sale of Attorney such Selling Shareholder's Secondary Special Warrants pursuant to this Agreement and the consummation of the transactions contemplated in this Agreement, including the delivery of Underlying Securities upon the exercise of the Selling Shareholder's Secondary Special Warrants, do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to sellwhich the Selling Shareholder is a party or by which the Selling Shareholder is or may be bound or to which any of the Selling Shareholder's property or assets are subject, transfer and deliver nor does or will such action conflict with or violate any statute, law, rule, regulation, ruling, judgment, injunction, order or decree applicable to the Shares Selling Shareholder or to any property or assets of the Selling Shareholder;
(vi) other than as may be required under Canadian Securities Laws, no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the sale of the Selling Shareholder's Secondary Special Warrants to be sold by such the Selling Shareholder as contemplated by this Agreement or a security entitlement the consummation of the transactions contemplated in respect this Agreement, including the transfer and delivery of Underlying Securities upon the exercise of such Shares.Secondary Special Warrants;
(dvii) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements will pay all taxes, if any, on the transfer by the Selling Shareholder of such Selling Shareholder.
(e) Upon payment for 's Secondary Special Warrants to Purchasers or in respect of the Shares to be sold transfer and delivery by such Selling Shareholders of Underlying Securities pursuant to the exercise of such Secondary Special Warrants; and
(viii) the Selling Shareholder will do or perform all things (A) required to be done or performed by the Selling Shareholder prior to the Special Warrant Closing Date to satisfy all conditions precedent to the delivery of the Selling Shareholder's Secondary Special Warrants pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee ; and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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 that are within its power and are necessary or desirable to give effect to all transactions contemplated by this Agreement and the Final Prospectus, including the transfer and delivery of Underlying Securities upon the UCC, the Underwriters will acquire a valid security entitlement in respect exercise of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCSecondary Special Warrants.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to to, and agrees with with, each of the several Underwriters and the Company that:
(a) This The Selling Shareholder has full right, power and authority to enter into this Agreement, the Power of Attorney (as hereinafter defined) and the Custody Agreement has (as hereinafter defined) and to sell, assign, transfer and deliver to the Underwriters the Shares to be sold by the Selling Shareholder hereunder; and the execution and delivery of this Agreement, the Power of Attorney and the Custody Agreement have been duly authorized, executed and delivered authorized by or on behalf all necessary action of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, has duly executed and the performance by such Selling Shareholder of its obligations under, delivered this Agreement, the Power of Attorney and the Custody Agreement signed by such Agreement, and each constitutes the valid and binding agreement of the Selling Shareholder and Computershare Trust Companyenforceable against the Selling Shareholder in accordance with its terms, N.A.subject, as Custodianto enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or affecting the deposit enforcement of creditors' rights generally and to general equitable principles.
(c) No consent, approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body is required for the sale of the Shares to be sold by the Selling Shareholder or the consummation of the transactions contemplated by this Agreement, the Power of Attorney or the Custody Agreement, except the registration of such Shares under the 1933 Act (which, if the Registration Statement is not effective as of the time of execution hereof, shall be obtained as provided in this Agreement) and such as may be required under state securities or blue sky laws in connection with the offer, sale and distribution of such Shares by the Underwriters.
(d) The sale of the Shares to be sold by such Selling Shareholder (and the “Custody performance of this Agreement”) and , the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to and the extent set forth therein, relating to Custody Agreement and the consummation of the transactions herein and therein contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Selling Shareholder is a party or to which any of its properties or assets is subject, nor will such action conflict with or violate any provision of applicable lawthe charter or bylaws or other governing instruments of the Selling Shareholder, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person)any, or any agreement statute, rule or other instrument binding upon such regulation or any order, judgment or decree of any court or governmental agency or body having jurisdiction over the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such the Selling Shareholder, and no consent, approval, authorization 's properties or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Sharesassets.
(ce) Such The Selling Shareholder has, and on at the Closing Time (as defined in Section 3 hereof) or, at the Date of Delivery, as the case may be, the Selling Shareholder 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 in respect of, to the Shares to be sold by such the Selling Shareholder hereunder, free and clear of all liens, security interests, claimspledges, lienscharges, encumbrances, defects, shareholders' agreements, voting trusts, equities or other encumbrances and the legal right and powerclaims of any nature whatsoever; and, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, upon delivery of such Shares against payment therefor as provided herein, good and valid title to such Shares, as directed by the Underwritersfree and clear of all liens, to Cede & Co. (“Cede”) security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities 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 claims of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)))nature whatsoever, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries pass to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCUnderwriters.
(f) Such The Selling Shareholder is has not prompted by (i) taken, directly or indirectly, any information concerning action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or its subsidiaries which is not set forth in resale of the Time Shares or (ii) since the filing of Sale Prospectus the Registration Statement (A) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (B) paid or agreed to sell its Shares pursuant pay to this Agreementany person any compensation for soliciting another to purchase any other securities of the Company.
(g) When any Preliminary Prospectus was filed with the Commission it (i) Each document, if any, filed or contained all statements required to be filed pursuant to the Exchange Act stated therein in accordance with, and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange requirements of, the 1933 Act and the applicable rules and regulations of the Commission thereunder, and (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. When the Registration Statement or any amendment thereto or any 462(b) Registration Statement or any amendment thereto was or is declared effective and at the Closing Time or the Date of Delivery, as the case may be, it (vi) each broadly available road showcontained or will contain all statements required to be stated therein in accordance with, if any, when considered together and complied or will comply in all material respects with the Time requirements of, the 1933 Act and the rules and regulations of Sale Prospectus, does the Commission thereunder and (ii) did not contain or will not include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading and (vi) misleading. When the Prospectus does or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not contain andrequired to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), and at the Closing Time or the Date of Delivery, as the case may be, the Prospectus, as amended or supplementedsupplemented at any such time, if applicable(i) contained or will contain all statements required to be stated therein in accordance with, and complied or will comply in all material respects with the requirements of, the 1933 Act and the rules and regulations of the Commission thereunder and (ii) did not or will not contain include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in . The foregoing provisions of this Section 2(gparagraph (g) are limited do not apply to statements or omissions made in any Preliminary Prospectus, the Registration Statement, Time of Sale Prospectus, the Prospectus, any 462(b) Registration Statement or any amendments amendment thereto or supplements the Prospectus or any amendment or supplement thereto based in reliance upon and in conformity with written information relating to such Selling Shareholder furnished to the Company by any Underwriter through you specifically for use therein. In order to document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Time (as hereinafter defined) a properly completed and executed United States Treasury Department form W-9 (or other applicable form or statement specified by Treasury Department regulations in writing lieu thereof). Each of the Selling Shareholders represents and warrants that certificates in negotiable form representing all of the Shares to be sold by such Selling Shareholder expressly for use thereinhereunder have been placed in custody under a custody agreement (the "Custody Agreement"), it being understood in the form heretofore furnished to and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISAapproved by you, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither duly executed and delivered by such Selling Shareholder nor any to American Stock Transfer and Trust Company, as custodian (the "Custodian"), and that such Selling Shareholder has duly executed and delivered a Power of its subsidiaries or controlled affiliatesAttorney (the "Power of Attorney"), nor any of their directors or officersin the form heretofore furnished to and approved by you, norappointing ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, to III as such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non's attorneys-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise in-fact (the "Attorneys-in-Fact") with authority to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or execute and deliver this Agreement on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such to determine the purchase price to be paid by the Underwriters to the Selling Shareholders as provided in Section 3 hereof, to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder and its subsidiaries and affiliates have instituted and maintained and will continue otherwise to maintain policies and procedures reasonably designed to promote and achieve compliance act on behalf of such Selling Shareholder in connection with the Anti-Corruption Laws, transactions contemplated by this Agreement and the Anti-Money Laundering Laws, SanctionsCustody Agreement. Each of the Selling Shareholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and with that the representations arrangements made by such Selling Shareholder for such custody, and warranties contained hereinthe appointment by such Selling Shareholder of the Attorneys-in- Fact by the Power of Attorney, are irrevocable. Each of the Selling Shareholders specifically agrees that the obligations of the Selling Shareholders 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 estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event.
Appears in 1 contract
Sources: Underwriting Agreement (Gulf Island Fabrication Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, as applicable, severally and not jointly, represents and warrants to to, and agrees with with, each of the Underwriters as of the date hereof, the Applicable Time (which is 9:00 P.M. NY time on November 17, 2011) and the Closing Date (as defined below) , that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene (A) any provision of applicable law, or (B) the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (C) any agreement or other instrument binding upon such Selling Shareholder Shareholder, or (D) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the case of clauses (A), (C) and (D) for such contraventions that would not, individually or in the aggregate, have a material adverse effect on the ability of such Selling Shareholder to perform its obligations hereunder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the federal securities laws or the securities or Blue Sky laws of the various states states, the Financial Industry Regulatory Authority and The New York Stock Exchange in connection with the offer and sale of the Shares.
(c) Such (i) With respect to the THL Selling Shareholder hasShareholders only, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, such THL Selling Shareholders own the Shares to be sold by such Selling Shareholder them pursuant to this Agreement free and clear of all security interestsliens, claims, liensencumbrances, equities or other encumbrances claims and have the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by them, or a security entitlement in respect of such Shares;
(ii) With respect to the Silver Point Selling Shareholder only, such Silver Point Selling Shareholder owns the Shares to be sold by the it pursuant to this Agreement free and clear of all liens, encumbrances, equities or claims and has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by it, or a security entitlement in respect of such Shares; and
(iii) With respect to the ▇▇▇▇▇▇▇ Sachs Selling Shareholders only, such ▇▇▇▇▇▇▇ ▇▇▇▇▇ Selling Shareholders own the shares of Series D Preferred Stock which, upon the Conversion, are equal to 8,193,750 shares of the Company’s Common Stock to be sold by them pursuant to this Agreement (which includes the Additional Shares to be sold by the ▇▇▇▇▇▇▇ Sachs Selling Shareholders in connection with any Option Closing Date, as applicable) free and clear of all liens, encumbrances, equities or claims and have the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by them, or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Moneygram International Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly with the other Selling Shareholders, represents and warrants to and agrees with each of the Underwriters on the date hereof, on the Closing Date and on each Option Closing Date, if any, that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The Neither the execution and delivery by such Selling Shareholder of, and nor the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company▇▇▇▇▇ Fargo Bank, N.A., as Custodian, relating to the deposit of the Shares 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”) ), will not contravene any provision of applicable lawconflict with, contravene, result in a breach or violation of, or the certificate imposition of incorporationany lien, by-laws charge or similar constitutional document encumbrance upon any assets of such Selling Shareholder (if such Selling Shareholder is not a natural person)pursuant to, or constitute a default under (i) any agreement or other instrument binding upon such Selling Shareholder or any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over such Selling Shareholder if any such breach, violation, lien, charge, encumbrance or default would be material in any respect, provided that no representation, warranty or agreement is made in this clause (i) with respect to the antifraud provisions of federal and state securities laws, (ii) the charter or bylaws (or other organizational documents) of such Selling Shareholder, if the Selling Shareholder is other than a natural person, or (iii) any contract, agreement, obligation, covenant or instrument to which such Selling Shareholder (or any of her, his or its assets) is subject or bound, except, in the case of this clause (iii), for such conflicts, breaches, violations, impositions or defaults that would not reasonably be expected to impair in any material respect the consummation of such Selling Shareholder’s obligations under this Agreement, the Custody Agreement or the Power of Attorney; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of her, his or its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as (i) may be required by the securities or Blue Sky “blue sky” laws of the various states jurisdictions in connection with the offer and sale of the Shares.
Shares and (cii) may have previously been made or obtained. Such attorneys-in-fact have been authorized pursuant to the Power of Attorney to execute and deliver this Agreement on behalf of such Selling Shareholder hasShareholder, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 Custodian has been authorized to receive and acknowledge receipt of the New York Uniform Commercial Code in respect of, proceeds of sale of the Shares to be sold by such Selling Shareholder against delivery thereof and otherwise act on behalf of such Selling Shareholder.
(c) All of the Shares to be sold by such Selling Shareholder pursuant to this Agreement will be issued to, and held of record by, such Selling Shareholder upon consummation of the Stock Split and will be represented at that time by certificated securities in registered form of Common Stock. Such Selling Shareholder is on the date hereof the beneficial owner of shares of Class A Voting Stock or Class B Non-Voting Stock, or both, of the Company (“Classified Shares”), in an amount equal, after giving effect to the Stock Split, to the number of shares of Common Stock disclosed under “Principal and Selling Shareholders” in the Time of Sale Prospectus and to be disclosed under that caption in the Prospectus as being shares of capital stock of the Company owned beneficially by such Selling Shareholder immediately prior to the Offering. Such Selling Shareholder will have on the Closing Date and on each Option Closing Date, if any, valid and marketable title to the number of Shares to be sold by such Selling Shareholder under this Agreement, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances, except as provided in subsection (e) of this Section. Such Selling Shareholder has on the date hereof, and will have on the Closing Date and on each Option Closing Date, if any, the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Sharesunder this Agreement.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are the legal, valid and binding agreements of such Selling Shareholder. A copy of each of the Custody Agreement and Power of Attorney has been delivered to ▇▇▇▇▇.
(e) Such Selling Shareholder has deposited in custody with the Custodian, under the Custody Agreement, certificates in negotiable form evidencing such Selling Shareholder’s Classified Shares referred to in subsection (c) above, to be recapitalized into Shares pursuant to the Stock Split and sold as Shares hereunder by such Selling Stockholder after the Stock Split and pursuant to this Agreement. Such Classified Shares and such Shares to be sold by such Selling Stockholder are subject to the interests of the Company, the Underwriters and the other Selling Shareholders; the arrangements made for such custody, and the appointment of the Agent pursuant to the Power of Attorney, are to that extent irrevocable; and the obligations of such Selling Shareholder hereunder and under the Power of Attorney and the Custody Agreement shall not be terminated except as provided in this Agreement, the Power of Attorney or the Custody Agreement by any act of such Selling Shareholder, by operation of law, whether, in the case of an individual Selling Shareholder, by the death or incapacity of such Selling Shareholder, or, in the case of a trust or an estate, by the death of the trustee or trustees or the executor or executors or the termination of such trust or estate, or, in the case of a partnership, corporation or limited liability company, by the dissolution, winding-up or other event affecting the legal life of such entity, or by the occurrence of any other event. If such Selling Shareholder is an individual and if such Selling Shareholder should die or become incapacitated, or if any such trustee or executor should die or become incapacitated, or if any such trust, estate, partnership, corporation or limited liability company should be terminated, or if any other event should occur before the delivery of such Selling Shareholder’s Shares hereunder, then the documents evidencing such Selling Shareholder’s Classified Shares and such Shares then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity, termination or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(f) 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 The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim claim” (within the meaning of Section 8-105 102 of the New York Uniform Commercial Code in effect in the State of New York (the “UCC”))) to such Shares), (Ai) DTC shall be a “protected purchaser” of such Shares (within the meaning of Section 8-303 of the UCC), (Bii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares Shares, and (Ciii) no action based on any “adverse claim”, ” (within the meaning of Section 8-102 of the UCC, ) to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, warranty and agreement, such Selling Shareholder may assume that that, when such payment, delivery and crediting occur, (xw) such the Selling Shareholders’ Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporationcharter, bylaws and applicable law, (yx) DTC will be registered as a “clearing corporation” (within the meaning of Section 8-102 of the UCC UCC), and (zy) appropriate entries to the accounts of each of the several Underwriters on the records of DTC will have been made pursuant to the UCCUCC and (z) DTC’s jurisdiction for purposes of Section 8-110 of the UCC is the State of New York.
(fg) Such Selling Shareholder has not, before the execution of this Agreement, offered or sold any Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the then most recent Preliminary Prospectus.
(h) If such Selling Shareholder is not prompted by a beneficial owner of 5% or more of the outstanding common stock or of any information concerning other unregistered equity securities of the Company or any of its subsidiaries which is acquired at any time on or after the 180th day immediately preceding the date that the Registration Statement was initially filed with the Commission, then such Selling Shareholder does not set forth in have any association or affiliation with a member of FINRA.
(i) Such Selling Shareholder has not, directly or indirectly, taken any action that will constitute, or has constituted, or designed to cause or result in, or that might reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) Such Selling Shareholder has reviewed the Registration Statement and the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each documentand, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time knowledge of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereundersuch Selling Shareholder, (ii) each part of neither the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain nor the Time of Sale Prospectus, at the Closing Date, contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit 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, . Such Selling Shareholder confirms the accuracy of the information concerning the undersigned (vi) each broadly available road show, if any, when considered together contained in the Selling Shareholder’s questionnaire furnished by the undersigned to the Company for purposes of filings with FINRA and (ii) as set forth in the Registration Statement and the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make Prospectus under the statements therein, in the light of the circumstances under which they were made, not misleading caption “Principal and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government OfficialShareholders”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Except as disclosed in the Registration Statement and the Time of Sale Prospectus and as will be disclosed in the Prospectus, such Selling Shareholder does not have any contractual or other rights to have any securities registered for sale by the Company under the Securities Act.
(l) Such Selling Shareholder has not prepared or had prepared on its behalf, or used or referred to, any free writing prospectus and its subsidiaries have conducted and will conduct their businesses has not distributed any written materials in compliance connection with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinOffering.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally, and not jointly, represents and warrants to to, and agrees with with, each of the several Underwriters and the Company that:
(ai) This Such Selling Shareholder has the legal capacity to enter into this Agreement, the Power of Attorney and the Custody Agreement (as hereinafter defined) and to sell, assign, transfer and deliver to the Underwriters the Shares to be sold by such Selling Shareholder hereunder.
(ii) Such Selling Shareholder has been duly authorized, executed and delivered by or on behalf this Agreement, the Power of such Selling Shareholder Attorney and is the Custody Agreement, and each constitutes the valid and binding agreement of such Selling ShareholderShareholder enforceable against such Selling Shareholder in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or affecting the enforcement of creditors' rights generally and to general equitable principles.
(biii) The execution and delivery by such Selling Shareholder ofNo consent, and approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body is required for the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit sale of the Shares to be sold by such Selling Shareholder (or the “Custody consummation of the transactions contemplated by this Agreement”) and , the Power of Attorney appointing certain individuals as or the Custody Agreement, except the registration of such Selling Shareholder’s attorneys-in-fact to Shares under the extent set forth thereinAct (which, relating to the transactions contemplated hereby and by if the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person)effective as of the time of execution hereof, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under shall be obtained as provided in this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except ) and such as may be required by the under state or provincial securities or Blue Sky laws of the various states in connection with the offer offer, sale and sale distribution of such Shares by the SharesUnderwriters.
(civ) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning The sale of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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 performance of this Agreement, the Power of Attorney and the Custody Agreement and the Power consummation of Attorney the transactions herein and therein contemplated will not conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach of violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other material agreement or instrument to sellwhich such Selling Shareholder is a party or to which any of his properties or assets is subject except for such breaches or violations as would not have a material adverse effect on the Company's financial condition or results of operations, transfer nor will such action conflict with or violate any statute, rule or regulation or any order, judgment or decree of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of such Selling Shareholder's properties or assets except such conflicts or violations as would not have a material adverse effect on the Company's financial condition or results of operations.
(v) Such Selling Shareholder has, and deliver immediately prior to Time of Delivery (as defined in Section 4 hereof), such Selling Shareholder will have, good and valid title to the Shares to be sold by such Selling Shareholder hereunder, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or a security entitlement in respect claims of any nature whatsoever; and, upon delivery of such Shares against payment therefor as provided herein, good and valid title to such Shares, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever, will pass to the several Underwriters.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fvi) Such Selling Shareholder is has not prompted by (A) taken, directly or indirectly, any information concerning action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or its subsidiaries which is not set forth in resale of the Time Shares or (B) since the filing of Sale Prospectus the Registration Statement (l) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (2) paid or agreed to sell its Shares pursuant pay to this Agreementany person any compensation for soliciting another to purchase any other securities of the Company.
(gvii) When any Preliminary Prospectus was filed with the Commission it (iA) Each document, if any, filed or contained all statements required to be filed pursuant to the Exchange Act stated therein in accordance with, and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange requirements of, the Act and the applicable rules and regulations of the Commission thereunder, and (iiB) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. When the Registration Statement or any amendment thereto was or is declared effective and at each Time of Delivery, it (vA) each broadly available road showcontained or will contain all statements required to be stated therein in accordance with, if any, when considered together and complied or will comply in all material respects with the Time requirements of, the Act and the rules and regulations of Sale Prospectus, does the Commission thereunder and (B) did not contain or will not include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading and (vi) misleading. When the Prospectus does or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not contain andrequired to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), and at each Time of Delivery, the Prospectus, as amended or supplementedsupplemented at any such time, if applicable(A) contained or will contain all statements required to be stated therein in accordance with, and complied or will comply in all material respects with the requirements of, the Act and the rules and regulations of the Commission thereunder and (B) did not or will not contain include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided . The foregoing provisions of this paragraph (vii) do not apply to statements or omissions made in any Preliminary Prospectus, the Registration Statement or any amendment thereto or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by any Underwriter through you specifically for use therein.
(viii) Such Selling Shareholder, without undertaking any independent investigation, is not aware that any of the representations and warranties set forth in this Section 2(g1(a) are limited above is untrue or inaccurate in any material respect. In order to statements document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or omissions in at the Registration Statement, First Time of Sale Prospectus, Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Each of the Prospectus, or any amendments or supplements thereto based upon information relating Selling Shareholders represents and warrants that certificates in negotiable form representing all of the Shares to such Selling Shareholder furnished to the Company in writing be sold by such Selling Shareholder expressly for use thereinhereunder will be placed in custody under a Custody Agreement, it being understood in the form heretofore furnished to and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISAapproved by you, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither duly executed and delivered by such Selling Shareholder nor any to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, as custodian (the "Custodian"), and that such Selling Shareholder has duly executed and delivered a Power of its subsidiaries or controlled affiliatesAttorney, nor any of their directors or officersin the form heretofore furnished to and approved by you, nor, to appointing the persons indicated in Schedule II hereto as such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non's attorneys-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise in-fact (the "Attorneys-in-Fact") with authority to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or execute and deliver this Agreement on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such to determine the purchase price to be paid by the Underwriters to the Selling Shareholders as provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder and its subsidiaries and affiliates have instituted and maintained and will continue otherwise to maintain policies and procedures reasonably designed to promote and achieve compliance act on behalf of such Selling Shareholder in connection with the Anti-Corruption Laws, transactions contemplated by this Agreement and the Anti-Money Laundering Laws, SanctionsCustody Agreement. Each of the Selling Shareholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and with that the representations arrangements made by such Selling Shareholder for such custody, and warranties contained hereinthe appointment by such Selling Shareholder of the Attorneys-in- Fact by the Power of Attorney, are irrevocable. Each of the Selling Shareholders specifically agrees that the obligations of such Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of such Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust the Company, N.A., as Custodian, relating to the deposit of the Shares 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 (the “Attorney-in-Fact”) to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable lawlaws and regulations, or the certificate of incorporation, by-laws or similar constitutional document other constitutive documents of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry register in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a Material Adverse Effect. Such Selling Shareholder is not prompted by any information concerning the any Group Company or its subsidiaries which is not set forth in the Time of Sale Prospectus and the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, Prospectus or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is does not (1) an employee benefit plan subject have any registration or other similar rights to Title I of ERISA, (2) a plan have any equity or account subject to Section 4975 debt securities registered for sale by the Company under the Registration Statement or included in the offering of the Code Shares, except for such rights as have been waived or which are described in the Registration Statement, Time of Sale Prospectus and Prospectus (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseand which have been complied with).
(i) Neither Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Shareholder to the Underwriters pursuant to this Agreement; and such Selling Shareholder nor does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company, other than those described in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(j) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of its subsidiaries the terms or controlled affiliatesprovisions of, nor or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of their directors the property or officersassets of such Selling Shareholder is subject, nor(ii) result in any violation of the provisions of the charter, bylaws or similar constitutive documents of such Selling Shareholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder.
(k) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder or the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable foreign or domestic securities laws in connection with the purchase and sale of the Shares by the Underwriters.
(l) There are no contracts, agreements or understandings between such Selling Shareholder and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering or, to such Selling Shareholder’s knowledge, any employeeother arrangements, agent agreements, understandings, payments or representative issuance with respect to the Company or any of its officers, directors, shareholders, partners, employees, Subsidiaries or affiliates that may affect the Underwriters’ compensation as determined by FINRA.
(m) There are no affiliations or associations between any member of FINRA and such Selling Shareholder, except as disclosed in the Registration Statement, Time of Sale Prospectus and Prospectus or as set forth in a questionnaire completed by such Selling Shareholder or and delivered to the Representatives prior to the date of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval this Agreement; none of the paymentproceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder pursuant to this Agreement will be paid to a member of FINRA or any affiliate of (or person “associated with”, giving as such terms are used in the Rules of FINRA) such member.
(n) Such Selling Shareholder represents that it has not prepared or receipt of money, property, gifts had prepared on its behalf or anything else of value, directly used or indirectly, referred to any government official free writing prospectus and represents that it has not distributed any written materials in connection with the offer or sale of the Shares.
(including any officer o) Except as described in the Registration Statement, Time of Sale Prospectus and Prospectus, no stamp or employee of a government other issuance or government-owned transfer taxes or controlled entity duties and no capital gains, income, withholding or of a public international organization, or any person acting in an official capacity for other taxes are payable by or on behalf of any the Underwriters to the government of the foregoingPRC, Cayman Islands, British Virgin Islands or any political party subdivision or party official taxing authority thereof in connection with the sale or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate delivery of such Selling Shareholder.
(i) The operations of such ’s Shares to the Underwriters. Any certificate signed by any Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, delivered to the Company’s knowledge, any employee, agent, affiliate Representative or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) counsel for the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident Underwriters in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance connection with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Shares shall be deemed a representation and Sanctions, and no investigation, inquiry, action, suit or proceeding warranty by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue as to maintain policies and procedures reasonably designed matters covered thereby, to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereineach Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Effective as of the date hereof and of the Pricing Agreement and as of the Firm Shares Closing Date, each of the Selling Shareholder represents Shareholders (as regards matters concerning itself), severally and not jointly, warrants to and agrees with each of the Underwriters that:and the Company, in the form of an independent guarantee and irrespective of negligence and irrespective of defenses (Einwendungen) or objections (Einreden):
(a1) This Agreement has been duly authorized, executed and delivered by him or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholderhis behalf.
(b2) The execution and delivery by such each Selling Shareholder of, and the performance by such each Selling Shareholder Shareholders of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable lawlaws and regulations, or as the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person)case may be, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court Governmental Authority having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required Governmental Authorization for the performance by such Selling Shareholder of its their obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shareshas been fully obtained.
(c3) Such Selling Shareholder He is, and at the time of delivery to the Underwriters shall be, the owner of the Old Shares then delivered and such ownership shall be free from any claims for payment of outstanding contributions thereon and free of all pledges, liens or other third party rights of any kind whatsoever. He has, and on the Firm Shares Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling 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, power to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Old Shares. Delivery of the Old Shares pursuant to Article 2(3) of this Agreement will transfer ownership of the Old Shares to the Underwriters or investors, as the case may be, free from any claims for payment of outstanding contributions thereon and free of all security interests, claims, pledges, liens or other third party rights of any kind whatsoever. The sale and delivery of the Old Shares will not be sold by such Selling Shareholder subject to any right of first refusal or a security entitlement in respect of such Sharessimilar rights.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i4) Neither such the Selling Shareholder nor any of his affiliates (not including, for purposes of this subsection (4), the Company or its subsidiaries or controlled affiliatessubsidiary, nor any in respect of their directors or officers, nor, to such which the Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, Shareholders make no representation) has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of valuetaken, directly or indirectly, any action which was designed to any government official (including any officer facilitate the sale or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any resale of the foregoing, Offered Shares or any political party which has constituted or party official or candidate for political office) (“Government Official”) in order might reasonably be expected to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation stabilization or manipulation of the price of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in security of the offering, whether as underwriter, advisor, investor or otherwise)Company.
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of (i) applicable law, or (ii) the certificate of incorporation, incorporation or by-laws (or similar constitutional document organizational documents) of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation or other business entity), or (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder, except in the case of clauses (i), (iii) and no (iv), for such contraventions that would not have a material adverse effect (1) on such Selling Shareholder or (2) on the ability of such Selling Shareholder to perform its obligations under this Agreement. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except (i) such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions or the rules and regulations of FINRA in connection with the offer and sale of the SharesShares or (ii) where the failure to obtain such consent, approval, authorization or order of, or qualification would not have a material adverse effect on the ability of such Selling Shareholder to perform its obligations under this Agreement.
(c) Such With respect to any Shares to be sold by such Selling Shareholder has, and that are outstanding on the Closing Date will havedate hereof, such Selling Shareholder has valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code UCC)) to such Shares) (the “UCC”))), (Ai) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bii) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such Shares Shares, and (Ciii) no an action based on any “an adverse claim”, within the meaning of Section 8-102 of the UCC, claim to such Shares securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (z) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iviii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viv) the Prospectus does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the such Selling Shareholder’s representations and warranties set forth in this Section 2(gparagraph 2(e) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by such Selling Shareholder consists of its legal name and address, the information relating to its holdings of Common Stock, the number of offered Shares and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Time of Sale Prospectus and the Prospectus in the table (and corresponding footnotes) under the caption “Selling Stockholders” (with respect to each Selling Shareholder, the “Selling Shareholder Information”).
(f) Other than as permitted by the Securities Act, neither such Selling Shareholder nor any person acting on behalf of such Selling Shareholder (other than, if applicable, the Company and the Underwriter as to whom no representation is being made) has used or referred to any free writing prospectus relating to the Shares.
(g) Such Selling Shareholder has not taken, directly or indirectly, any action designed to or that described as such would reasonably be expected to cause or result in Section 11(b) hereofthe stabilization or manipulation of the price of any security of the Company in connection with the offering of the Shares.
(h) Such Solely for purposes of assisting the Underwriter in relying on the exception from fiduciary status under U.S. Department of Labor Regulations set forth in Section 29 CFR 2510.3-21(c)(1), if such Selling Shareholder is a corporation or other business entity, such Selling Shareholder represents and warrants that either (A) it is not (1i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (2ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or (3iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3C.F.R. 2510.3-101, or otherwise.
; or (B) if it is a plan, account or entity described in (i), (ii) Neither or (iii) of clause (A) above, a fiduciary acting on its behalf is causing such Selling Shareholder to enter into this Agreement and the transactions contemplated hereby and such fiduciary: (1) is an entity specified in Section 29 CFR 2510.3-21(c)(1)(i)(A)-(E); (2) is independent (for purposes of Section 29 CFR 2510.3-21(c)(1)) of the Underwriter; (3) is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies, including such Selling Shareholder’s transactions with the Underwriter hereunder; (4) has been advised that neither the Underwriter nor any of its subsidiaries respective affiliates has undertaken or controlled will undertake to provide impartial investment advice, or has given or will give advice in a fiduciary capacity, in connection with such Selling Shareholder’s transactions with the Underwriter contemplated hereby; (5) is a “fiduciary” under Section 3(21)(a) of ERISA or Section 4975(e)(3) of the Code, or both, as applicable, with respect to, and is responsible for exercising independent judgment in evaluating, such Selling Shareholder’s transactions with the Underwriter contemplated hereby; and (6) understands and acknowledges the existence and nature of the underwriting discounts, commissions and fees, and any other related fees, compensation arrangements or financial interests, described in the Time of Sale Prospectus and the Prospectus, and understands, acknowledges and agrees that no such fee or other compensation is a fee or other compensation for the provision of investment advice, and that neither the Underwriter nor any of its affiliates, nor any of their directors or respective directors, officers, normembers, to partners, employees, principals or agents has received or will receive a fee or other compensation from such Selling Shareholder or such fiduciary for the provision of investment advice (rather than other services) in connection with such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of transactions with the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling ShareholderUnderwriter contemplated hereby.
(i) The operations of such Each Selling Shareholder who is not formed under the law of a state of the United States (a “Non-U.S. Selling Shareholder”) represents and each of its subsidiaries warrants that it has the power to submit, and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(iipursuant to Section 14(a) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers norhas, to the Company’s knowledgeextent permitted by law, any employeelegally, agentvalidly, affiliate or representativeeffectively and irrevocably submitted, is a Person that isto the jurisdiction of the Specified Courts (as defined in Section 14(a)), or is owned or controlled by one or more Persons that are:
(A) and has the subject of any sanctions administered or enforced by the Sanctionspower to designate, or
(B) locatedappoint and empower, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified and pursuant to Executive Order 14065Section 14(b), Crimeahas legally, Cubavalidly and effectively designated, Iran, North Korea appointed and Syria).
(iii) For the past five years, such Selling Shareholder and each empowered an agent for service of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or process in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by based on or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or arising under this Agreement in any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinSpecified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each ---------------------------------------------------------- Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) Such Selling Shareholder is either the lawful owner of the number of Shares to be sold by such Selling Shareholder pursuant to this Agreement or is the lawful owner of securities convertible into or exercisable for at least the number of Shares to be sold by such Selling Shareholder, will be the lawful owner of the number of Shares to be sold by such Selling Shareholder pursuant to this Agreement at the time of purchase and will have valid and marketable title to such Shares at the time of purchase; upon delivery of and payment for such Shares the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) Such Selling Shareholder has and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will have, full legal right, power and capacity, and any approval required by law (other than those imposed by the Act, the NYSE and the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement; (c) This Agreement has and the Custody Agreement and Power-of- Attorney among the Company, as custodian and the Selling Shareholders and the Representatives of the Selling Shareholders (the "Custody Agreement") have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and each is the a legal, valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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 enforceable in accordance with its certificate of incorporationterms, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries subject to the accounts bankruptcy, insolvency, reorganization, moratorium and similar laws of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information general applicability relating to such Selling Shareholder furnished or affecting creditors rights and to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctionsgeneral equitable principles;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) any provision of applicable law, or (ii) the operating agreement, limited liability company agreement, partnership agreement, certificate of incorporation, by-laws or similar constitutional other equivalent document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling ShareholderShareholder except in the case of clauses (iii) and (iv) as would not, individually or in the aggregate, have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated by this Agreement (including the Share Repurchase), and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) Such Selling Shareholder is not prompted by any information concerning has delivered to the Company or its subsidiaries which is not set forth Representatives an executed lock-up agreement in substantially the Time of Sale Prospectus to sell its Shares pursuant to this form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such any Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such furnished by the Selling Shareholders consists of the following information in Section 11(b) hereofthe Prospectus furnished on behalf of each Selling Shareholder: the name and address of each Selling Shareholder, the number of shares to be sold by each Selling Shareholder and any footnotes regarding beneficial ownership related thereto (the “Selling Shareholder Information”).
(hg) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is 50% or more owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (at present, including, without limitation, the so-called Donetsk People’s Republic, Republic and the so-called Luhansk People’s RepublicRepublic regions of Ukraine, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or knowingly indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions in violation of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, such Such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions in violation of Sanctions.
(ja) Such None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative or controlled affiliate, in each case in their capacity as such, has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds of the offeringto any Government Official in order to influence official action, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or person in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Antiapplicable anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person corruption laws; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and each of its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such the Selling Shareholder, threatened. .
(vi) Such Selling Shareholder represents and its subsidiaries and affiliates have instituted and maintained and will continue warrants that it is not (i) an employee benefit plan subject to maintain policies and procedures reasonably designed Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to promote and achieve compliance with Section 4975 of the AntiInternal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-Corruption Laws101, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinor otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (CCC Intelligent Solutions Holdings Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust CompanyComputershare, N.A.Inc., as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) require any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or other order of, or qualification with, any court or governmental agency or body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, (except such as may be required by under the securities or Blue Sky laws of the various states in connection states), (ii) conflict with the offer and sale or constitute a breach of any of the Sharesterms or provisions of, or a default under, the organizational documents of such Selling Shareholder, if such Selling Shareholder is not an individual, or any material indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or any property of such Selling Shareholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Shareholder or any property of such Selling Shareholder.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (xw) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (yx) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and UCC, (zy) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC and (z) the jurisdiction of DTC for purposes of its “securities intermediary jurisdiction” (as defined in Section 8-110 of the UCC) is New York.
(f) Such Selling Shareholder is not prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iviii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; , provided that the representations and warranties set forth in this Section 2(gparagraph (g) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I Time of ERISASale Prospectus, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, Prospectus or any person acting in an official capacity for amendments or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholdersupplements thereto.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders severally and not jointly represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and the its 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”) Custody Agreement will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or the trust agreement (if such Selling Shareholder is a trust) or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney and Custody Agreement of 10 9 such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date (as defined below) will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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 required authorizations and approval required by law, approvals to enter into this Agreement, the Custody Agreement and the its Power of Attorney and Custody Agreement and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Custody Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and the are validly issued, fully paid and non-assessable.
(e) The Power of Attorney have and Custody Agreement of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and are is a valid and binding agreements agreement of such Selling Shareholder, enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and the availability of equitable remedies may be limited by equitable principles of general applicability.
(ef) Upon payment for Delivery of 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 Agreement will pass valid and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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, marketable title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreementother encumbrances.
(g) All information furnished to the Company by or on behalf of such Selling Shareholder expressly for use in the Registration Statement and Prospectus is, and on the Closing Date (as defined below) will be, true, correct and complete, and does not, and on the Closing Date will not, contain any untrue statement of material fact or omit to state any material fact necessary to make such information not misleading.
(i) Each documentThe Registration Statement and the Prospectus comply and, as amended or supplemented, if anyapplicable, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Securities Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact 11 10 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section 2(g2(h) are limited do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through you expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has not taken or and will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of valuenot take, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organizationaction designed to, or any person acting that might be reasonably expected to, cause or result in an official capacity for stabilization or on behalf of any manipulation of the foregoing, or any political party or party official or candidate for political office) price of the Common Stock (“Government Official”) in order to improperly influence official action by provided that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure does not make any improper advantage, or representation as to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iiiactions that may be taken by any Underwriter), “controlled affiliate” means an affiliate over which ; and such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall has not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, distributed and will not engage in, distribute any dealings prospectus or transactions other offering material in connection with any Person, or in any country or territory, that at the time offering and sale of the dealing Shares other than any preliminary prospectus filed with the Commission or transaction is the Prospectus or was other material permitted by the subject of SanctionsSecurities Act.
(j) Such Selling Shareholder will not, directly has no direct or indirectly, use the proceeds of the offering, indirect association or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or affiliation with any Person National Association of Securities Dealers, Inc. ("NASD") members and has had no arrangements, dealings or in any country or territory thataffiliation with, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation and is not aware of any Anti-Corruption Lawsinformation relating to underwriting compensation payable to or for the benefit of, Anti-Money Laundering Lawsany NASD member, person associated with a member or Sanctions by any Person (including any Person participating Underwriter, relating to the offering of Shares that has not been disclosed in the offering, whether as underwriter, advisor, investor or otherwise)Registration Statement.
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholders, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement such Selling Shareholder has been duly authorizedreviewed and is familiar with the Registration Statement and the Prospectus and (i) to the best of his knowledge, executed the Registration Statement did not when it became effective and delivered will not at the time of purchase and any additional time of purchase, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, to the best of his knowledge, the Prospectus does not, as of its date and will not at the time of purchase and any additional time of purchase, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that such Selling Shareholder makes no warranty or representation with respect to any statement contained in the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Registration Statement or the Prospectus, (ii) is not prompted to sell the Shares to be sold by the Selling Shareholder by any information concerning the Company or any Subsidiary which is not set forth in the Registration Statement and the Prospectus and (iii) has no reason to believe that any representation or warranty of the Company set forth in Section 3 above is untrue.
(b) such Selling Shareholder is now and at the time of delivery of such Shares will be the lawful owner of the number of Shares to be sold by such Selling Shareholder pursuant to this Agreement and has and at the time of delivery thereof will have good and valid title to such Shares, and upon delivery of and payment for such Shares, the Underwriters will acquire good and valid title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) this Agreement has been duly executed and delivered by such Selling Shareholder;
(d) 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 executed and delivered by such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.;
(be) The execution and delivery by such Selling Shareholder of, has full right and the performance by such Selling Shareholder of its obligations under, power to execute and deliver this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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 and the extent set forth thereinCustody Agreement; the execution, relating to delivery and performance of this Agreement and the Power of Attorney and the Custody Agreement, the sale of the Additional Shares and the consummation of the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) thereby will not contravene conflict with, result in any provision breach or violation of applicable lawor constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under) the any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or the certificate of incorporationany license, by-laws lease, contract or similar constitutional document of such Selling Shareholder (if other agreement or instrument to which such Selling Shareholder is not a natural person), party or by which he or any agreement of his properties may be bound or other instrument binding upon affected, except for such Selling Shareholder breaches or any judgmentdefaults that would not, order individually or decree of any governmental bodyin the aggregate, agency or court having jurisdiction over such Selling Shareholder, and result in a Material Adverse Effect;
(f) no consent, approval, authorization or order of, of any court or qualification with, any governmental agency or body or agency is required for the performance consummation by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholdertransactions contemplated herein, except such as may be required by have been obtained under the securities Act, the Israeli Securities Act of 1968, as amended, or Blue Sky the blue sky laws of the various states any jurisdiction in connection with the offer purchase and sale distribution of the Shares.Additional Shares by the Underwriters in the manner contemplated herein and in the Prospectus, such as relate to the review of the transaction by the NASD, and such other approvals as have been obtained;
(cg) Such Selling Shareholder hasshare certificates accompanied by duly executed share transfer deeds with respect to the Additional Shares have been placed in custody, and on for delivery pursuant to the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning terms of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, under the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
duly authorized (d) The Custody Agreement and the Power of Attorney have been duly authorizedif applicable), executed and delivered by such Selling Shareholder, in the form heretofore furnished to you with the Company, as Custodian (the “Custodian”) and the Attorneys-in-Fact appointed therein; the Ordinary Shares represented by the certificates so held in custody for each Selling Shareholder are subject to the interests hereunder of the Underwriters; the arrangements for custody and delivery of such certificates, made by such Selling Shareholder hereunder and under the Custody Agreement, are valid and binding agreements not subject to termination by any acts of such Selling Shareholder., or by operation of law, whether by the death or incapacity of such Selling Shareholder or the occurrence of any other event; and if any such death, incapacity or any other such event shall occur before the delivery of such Shares hereunder, such certificates will be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Custody Agreement and Power of Attorney as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity or other event;
(eh) Upon such Selling Shareholder has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(i) each Selling Shareholder has validly appointed an authorized agent for service of process in the United States pursuant to this Agreement and in connection with the Registration Statement; and
(j) upon payment of the purchase price 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 The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee nominee, and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim (claim,” within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)), to such Shares), (A) DTC shall be a “protected purchaser,” of such Shares within the meaning of Section 8-303 of the UCC, of such Shares and will acquire its interest in the Shares (including, without limitation, all rights that such Selling Shareholder had or has the power to transfer in such Shares) free and clear of any adverse claim within the meaning of Section 8-102 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 (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-8 102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate articles of incorporation, bylaws association and applicable law, (y) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such . In addition, any certificate signed by any Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant and delivered to the Exchange Act and incorporated by reference in Underwriters or counsel for the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares Underwriters in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of Additional Shares shall be deemed to be a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading representation and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing warranty by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, normatters covered thereby, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling ShareholderUnderwriter.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Aladdin Knowledge Systems LTD)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) Such Selling Shareholder now has, and on the Closing Date and any Option Closing Date will have, good and marketable title to the Shares to be sold by such Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) Such Selling Shareholder now has, and on the Closing Date and any Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire good and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement has and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is are the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document agreements of such Selling Shareholder (if enforceable against such Selling Shareholder is not a natural person), in accordance with their terms.
(d) Neither the execution and delivery of this Agreement or any agreement the Custody Agreement by or other instrument binding upon on behalf of such Selling Shareholder nor the consummation of the transactions herein or any judgment, order therein contemplated by or decree on behalf of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no Shareholder requires any consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, official (except such as may be required by under the Act or such as may be required under state securities or Blue Sky laws of governing the various states in connection with the offer purchase and sale distribution of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date or conflicts or will have, valid title toconflict with or constitutes or will constitute a breach of, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect ofdefault under, the Shares or violates or will violate, any agreement, indenture or other instrument to be sold by which such Selling Shareholder free and clear of all security interestsis a party or by which such Selling Shareholder is or may be bound or to which any such Selling Shareholder's property or assets is subject, claimsor any statute, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, rule, regulation, ruling, judgment, injunction, order or decree applicable to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements to any property or assets of such Selling Shareholder.
(e) Upon payment for The Registration Statement and the Shares Prospectus, insofar as they relate to be sold by such Selling Shareholder pursuant to this AgreementShareholder, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee do not and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(iiif) Such Selling Shareholder does not have any actual knowledge or any reason to believe that the Registration Statement as of or the date hereof does not contain Prospectus (or any amendment or supplement thereto) contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(ivg) The representations and warranties of such Selling Shareholder in the Time of Sale Prospectus does notCustody Agreement are, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5)and any Option Closing Date will be, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading true and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofcorrect.
(h) Such Selling Shareholder is has not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of valuetaken, directly or indirectly, any action designed to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order that might reasonably be expected to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation stabilization or manipulation of any Anti-Corruption Lawsthe price of the Common Shares to facilitate the sale or resale of the Shares, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating except as described in the offering, whether as underwriter, advisor, investor or otherwise)Prospectus.
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally and not jointly (including each of Ronder Investments Limited, Speedtime Trading Limited and Onlypiece Trading Limited , referred to as the “Elbrus Entities”, severally and not jointly), represents and warrants to and agrees with each of the Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.;
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, under this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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 thereinherein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene (i) any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (ii) any agreement or other instrument binding upon such Selling Shareholder or (iii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder (except with respect to (ii) and (iii) which would not individually or in the aggregate in any material respect impair the fulfillment of such Selling Shareholder’s obligations under this Agreement, a “Seller Material Adverse Effect”), and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, except (1) for the Custody Agreement registration under the Securities Act of the Ordinary Shares and the ADSs; and (2) such consents, approvals, authorizations, orders filings, registrations or Power of Attorney of such Selling Shareholderqualifications under the Exchange Act, except such as may be required by the or any securities or antifraud or Blue Sky laws of the various any states or FINRA in connection with the offer and sale and distribution of the Shares.Ordinary Shares and the ADSs; and (3) such consents, approvals, authorizations, orders filings, registrations or qualifications that if not obtained, could not individually or in the aggregate, reasonably be expected to have a Seller Material Adverse Effect;
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares ADSs 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, law to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares ADSs to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.ADSs;
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares ADSs to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such SharesADSs, 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 ADSs in the name of Cede or such other nominee and the crediting of such Shares ADSs on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such ADSs), (A) DTC shall be a “protected purchaser” of such Shares ADSs 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 ADSs and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares ADSs 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 ADSs will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.;
(e) Such Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”);
(f) Such Selling Shareholder is not prompted by any material non-public information concerning the Company or its subsidiaries Subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each documentRegistration Statement, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, to sell its ADSs pursuant to this Agreement;
(iii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iviii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares ADSs in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section 2(g) are limited paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus, Prospectus or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, and provided that the representation and warranty set forth in this paragraph applies only to misstatements or omissions made in reliance upon and in conformity with such Selling Shareholder’s Selling Shareholder Information. With respect to each Selling Shareholder, “Selling Shareholder Information” means information furnished in writing by or on behalf of such Selling Shareholder expressly for use thereinin the Registration Statement, the Prospectus or the Pricing Disclosure Package, it being understood and agreed that the only information furnished by such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I consists of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge legal name of such Selling Shareholder, threatened. Such (ii) the number of Ordinary Shares beneficially owned by such Selling Shareholder before and its subsidiaries after the offering, and affiliates have instituted (iii) the address and maintained and will continue other information with respect to maintain policies and procedures reasonably designed to promote and achieve compliance with such Selling Shareholder (excluding percentages) which appears or is incorporated by reference in the Anti-Corruption LawsRegistration Statement, the Anti-Money Laundering LawsProspectus, Sanctions, or the Pricing Disclosure Package in the table (and with the representations and warranties contained herein.corresponding footnote) under section entitled “Selling Shareholders”;
Appears in 1 contract
Sources: Underwriting Agreement (Cian PLC)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, Agreement and the Agreement and Power of Attorney or the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.Power of Attorney, as Custodianapplicable, relating to the deposit of the Shares 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 (together, the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states or any applicable law, rule or regulation of any foreign jurisdiction in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date and the Option Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code of the State of Delaware (the “UCC”) in respect of, the Shares (other than Shares subject to stock options or restricted stock awards granted pursuant to the Company’s Omnibus Stock Plan (the “Stock Option Plan”)) to be sold by such Selling Shareholder and on the Closing Date and the Option Closing Date, with respect to Shares subject to restricted stock awards granted pursuant to the Stock Option Plan, upon the lapse of any vesting restrictions on Shares subject to such restricted stock awards and, with respect to Shares subject to stock options granted pursuant to the Stock Option Plan, upon payment of the exercise price for any Shares to be issued upon exercise of such options in accordance with the terms of the Stock Option Plan, will have valid title to or a valid “security entitlement” within the meaning of Section 8-501 of the UCC, 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 lawlaw or the certificate of incorporation or by-laws or other organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural person), to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have has been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by 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 The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood the Prospectus or any amendments or supplements thereto.
(g) Such Selling Shareholder has not taken and agreed that will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the only such information is that described as such in Section 11(b) hereofprice of any security of the Company or CME to facilitate the sale or resale of the Shares.
(h) Such In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Shareholder is not will deliver to the Representatives prior to or at the Closing Date a properly completed and executed U.S. Treasury Department Form W-9 (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of other applicable form or statement specified by the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseU.S. Treasury Department regulations in lieu thereof).
(i) Neither Except as disclosed by such Selling Shareholder in writing to the Representatives, neither such Selling Shareholder nor any of his, her or its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to payaffiliates directly, or authorization indirectly through one or approval of the paymentmore intermediaries, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that iscontrols, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republicby, or is under common control with, or has any other Covered Region association with (within the meaning of Ukraine identified pursuant to Executive Order 14065Article 1(q) of the By-laws of NASD, Crimea, Cuba, Iran, North Korea and SyriaInc. (the “NASD”).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in), any dealings or transactions with any Person, or in any country or territory, that at the time member firm of the dealing or transaction is or was the subject of SanctionsNASD.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Chicago Mercantile Exchange Holdings Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally and not jointly represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, under this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document charter and any other organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural personlegal entity), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) . Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) . Upon payment for the Shares to be sold by 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 Agreement and the crediting of such Shares on the books of DTC the Depository Trust Company (“DTC”) to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (CB) 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 Cede& Co. (“Cede”) or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fc) Such Selling Shareholder is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(gd) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(d) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofTime of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
(he) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor nor, as applicable, any of its subsidiaries or controlled affiliatesgeneral partners, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to paymanaging directors, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, trustees is a Person that is, or is owned or controlled by one or more Persons a Person that areis:
(A) the subject of any sanctions administered or enforced by the Sanctions, ; or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea Korea, Sudan and Syria).
(iiiii) For the past five years, such such Selling Shareholder and, as applicable, its general partners, managing directors, and each of its subsidiaries trustees have not engaged in, are not now knowingly engaged in, and will are not engage now knowingly engaged in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(jiii) Such Selling Shareholder will not, directly or indirectly, knowingly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.:
(iA) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, is the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iiiB) in any other manner that would cause or will result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Irrevocable Power of Attorney and Custody Agreement signed by such Selling Shareholder and Computershare Trust CompanyShareholder, N.A.____________, as CustodianCustodian and ____________ and ____________, as Attorneys-in-Fact, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-'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”"CUSTODY AGREEMENT") will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, fully paid and non-assessable.
(e) The Custody Agreement and the Power of Attorney have has been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(ef) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) ii the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section 2(g) are limited paragraph 2 do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through you expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, solely with respect to itself, represents and warrants to and agrees with each of the Underwriters that:
(a) If it is a limited liability company, such Selling Shareholder has been duly organized and is validly existing as a company with limited liability in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as currently conducted and to enter into and perform its obligations under this Agreement.
(b) This Agreement has been duly authorizedauthorized (if it is a limited liability company), executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(bc) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this AgreementAgreement will not contravene or conflict with, result in a breach of, or constitute a Default under, or require the consent of any other party to, the Custody certificate of formation, articles of organization or other organizational documents (if applicable) of such Selling Shareholder or any other agreement or instrument to which such Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit, any provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Shareholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Shareholder. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency is required for such Selling Shareholder’s execution, delivery or performance of this Agreement signed or the consummation by such Selling Shareholder of the transactions contemplated in this Agreement, except such as (i) have been obtained or made and Computershare Trust Companyare in full force and effect or (ii) may be required under applicable state securities or blue sky laws.
(d) Except for such consents, N.A., as Custodian, relating approvals and waivers which have been obtained by such Selling Shareholder on or prior to the deposit date of this Agreement, no consent, approval or waiver is required under any instrument or agreement to which such Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit, in connection with the offering, sale or purchase by the Underwriters of any of the Shares to which may 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”) will not contravene any provision of applicable law, under this Agreement or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance consummation by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws any of the various states in connection with the offer and sale of the Sharesother transactions contemplated hereby.
(ce) Such Selling Shareholder has, has and on the Closing Date will have, have good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 to all of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to which may be sold by such Selling Shareholder pursuant to this AgreementAgreement on such date and the legal right and power to sell, delivery transfer and deliver all of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as Shares which may be designated sold by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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 pursuant to this Agreement 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 to comply with its certificate of incorporation, bylaws other obligations hereunder 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 UCCthereunder.
(f) Delivery of the Shares which are sold by such Selling Shareholder pursuant to this Agreement will pass good and valid title to such Shares, free and clear of any security interest, mortgage, pledge, lien, encumbrance or other adverse claim.
(g) Such Selling Shareholder is has not prompted taken, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security to facilitate the sale or resale of shares of Common Stock.
(h) Such Selling Shareholder (i) does not have any registration or other similar rights to have any equity or debt securities registered for sale by any information concerning the Company under the Registration Statement or its subsidiaries which is not set forth included in the offering contemplated by this Agreement, except for such rights as are generally described in the Time of Sale Prospectus and the Prospectus or are set forth in that certain Registration Rights Agreement dated as of July 15, 2005, as modified to sell its Shares pursuant to this Agreement.
date (g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and which is incorporated by reference as an exhibit to the Registration Statement), and (ii) does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any share capital, rights, warrants, options or other securities from the Company, other than those generally described in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations Prospectus.
(i) All information furnished by or on behalf of the Commission thereunder, (ii) each part of such Selling Shareholder in writing expressly for use in the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus and the Prospectus is, and on the Closing Date and any applicable Option Closing Date will be, true, correct, and complete in all material respects, and does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, and any applicable Option Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make such information not misleading. Such Selling Shareholder confirms as accurate the statements therein, number of shares of Common Stock set forth opposite such Selling Shareholder’s name in the light Time of Sale Prospectus under the caption “Selling Shareholders” (both prior to and after giving effect to the sale of the circumstances Shares).
(j) Such Selling Shareholder is not, and after receipt of payment for the Shares will not be, an “investment company” within the meaning of the Investment Company Act.
(k) There are no transfer taxes or other similar fees or charges under which they were madefederal law or the laws of any state or foreign jurisdiction, or any political subdivision thereof, required to be paid by such Selling Shareholder in connection with the execution and delivery of this Agreement or the sale by such Selling Shareholder of any of the Shares.
(l) Such Selling Shareholder has not misleadingdistributed and will not distribute, prior to the later of (i) the expiration or termination of the option granted to the several Underwriters under Section 3, (vii) each broadly available road showthe completion of the Underwriters’ distribution of the Shares and (iii) the expiration of 25 days after the date of the Prospectus, if anyany offering material in connection with the offering and sale of the Shares other than a preliminary prospectus, when considered together with the Time of Sale Prospectus, does not contain the Prospectus or the Registration Statement.
(m) Such Selling Shareholder has reviewed and is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and: (i) with respect solely to information provided in writing by such Selling Shareholder that is included therein, has no knowledge of any untrue statement misstatement of a material fact or omit failure to state a material fact necessary to make the statements thereinin the Time of Sale Prospectus and the Prospectus, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that and (ii) is not prompted to sell the representations and warranties Shares to be sold by such Selling Shareholder by any information concerning the Company or any Subsidiary which is not set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, the Time of Sale Prospectus, Prospectus and the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Genco Shipping & Trading LTD)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally, and not jointly, represents and warrants to to, and agrees with with, each of the Underwriters that:Underwriter as set forth below in this Section 2.
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by Other than any Lien granted pursuant to the applicable Margin Loan (as defined in the Prospectus), which Liens applicable to the Securities shall be discharged at Closing, such Selling Shareholder ofhas, and or, upon the performance by such Selling Shareholder conversion of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating Series A perpetual convertible preferred shares prior to the deposit of Closing Date (as applicable), will have, good and valid title to 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 it pursuant to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power free and clear of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Sharesall Liens.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares Securities to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such SharesSecurities, as directed by the UnderwritersRepresentative, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) or CDS Clearing and Depository Services Inc. (“CDS”), as applicable, registration of such Shares Securities in the name of Cede or such other nominee and the crediting of such Shares Securities on the books of DTC or CDS to the securities accounts account of the Underwriters (assuming that neither DTC DTC, CDS nor any such Underwriter the Underwriters has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Securities), (A) DTC or CDS, as applicable, shall be a “protected purchaser” of such Shares Securities within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and Securities, (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares Securities may be asserted against the Underwriters with respect to such security entitlement; and (D) the Underwriters will otherwise acquire good and valid title to such Securities free and clear of all Liens; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares Securities will have been registered in the name of Cede or another nominee designated by DTCDTC or CDS, in each case on the Company’s share registry in accordance with its certificate of incorporationarticles, bylaws and applicable law, (y) DTC or CDS, as applicable, will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries entry to the accounts account of the several Underwriters on the records of DTC or CDS, as applicable, will have been made pursuant to the UCC.
(fd) Such The execution and delivery by such Selling Shareholder is of, and the performance by such Selling Shareholder of its obligations under, this Agreement will not prompted by contravene or conflict with, result in a breach of, or constitute a default (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) other party to, (i) Each documentthe articles, if anyby-laws or other organizational documents, filed or to be filed pursuant to as the Exchange Act and incorporated by reference in the Time case may be, of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereundersuch Selling Shareholder, (ii) each part any other agreement or instrument to which such Selling Shareholder is a party or by which it is bound or (iii) any provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Shareholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Shareholder, except, in the case of the foregoing clauses (ii) and (iii) as would not, individually or in the aggregate, reasonably be expected to materially impact such Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by such Selling Shareholder of the transactions contemplated in this Agreement, except such as may be required under the Securities Act, applicable state securities or blue sky laws and from the FINRA and such other approvals as have been or will be made or obtained on or prior to the Closing Date.
(e) All information furnished to the Company or the Underwriters by or on behalf of such Selling Shareholder in writing expressly for use in the Registration Statement, when such part became effectivethe Disclosure Package and the Prospectuses is, and on the Closing Date will be, true, correct and complete in all material respects, and did not contain not, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, such information not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information consists of the information with respect to such Selling Shareholder under the captions “Selling Shareholders” and “Use of Proceeds” in the Pricing Disclosure Package and the Prospectuses (such information, the “Selling Shareholder Information”).
(f) Prior to the completion of the Underwriters’ distribution of the Securities, such Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Securities other than the Disclosure Package and the Prospectuses.
(g) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that described as such has constituted or that might reasonably be expected to cause or result in Section 11(b) hereofstabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(h) Such Selling Shareholder Except as provided herein, there is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither no Person which has been engaged by such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of act for such Selling Shareholder and which is entitled to any brokerage or finder’s fee in connection with the completion of this Agreement or any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for transactions contemplated hereunder. Any certificate signed by or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each delivered to the Representative or to counsel for the Underwriters in connection with the offering of its subsidiaries the Securities shall be deemed a representation and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither warranty by such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) Underwriters as to the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries matters covered thereby with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with has a reasonable basis for making each of the representations set forth in this Section 2. Such Selling Shareholder further acknowledges that the Underwriters will rely upon the accuracy and warranties contained hereintruthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally and not jointly represents and warrants to to, and agrees with with, each of the Underwriters that:Underwriter as set forth below in this Section 2.
(a) This Neither the Disclosure Package nor the Final Prospectus or any amendments or supplements thereto includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such representations and warranties set forth in this Section 2(a) apply only to statements or omissions made in reliance upon and in conformity with the Selling Shareholder Information.
(1) The Trust (and not TPG) represents and warrants that it is a trust duly formed and validly existing pursuant to the laws of Delaware, and each trustee thereof is a duly appointed and incumbent trustee of the Trust, having the requisite authority to
(2) TPG (and not the Trust) represents and warrants that it is a limited partnership duly formed and validly existing pursuant to the laws of Delaware and has the full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Securities to be sold by TPG hereunder, and this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling ShareholderTPG.
(bc) The None of the execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit sale 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”) will not contravene any provision of applicable law, or the certificate consummation of incorporationany other of the transactions herein, or the fulfillment of the terms hereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Shareholder pursuant to (i) the charter or by-laws or similar constitutional document comparable constituting documents of such Selling Shareholder Shareholder; (if ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which such Selling Shareholder is not a natural person)party or bound or to which its property is subject; or (iii) any statute, or any agreement or other instrument binding upon such Selling Shareholder or any law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, agency arbitrator or court other authority having jurisdiction over such Selling Shareholder, or any of its properties, except in the case of clause (ii) and no consent(iii), approvalfor any such conflict, authorization breach, violation or order ofimposition, in each case, as would not singly or qualification with, any governmental body or agency is required for in the performance by aggregate result in a material adverse effect on the ability of such Selling Shareholder of to perform its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer hereunder and sale of the Sharesthereunder.
(cd) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares Securities to be sold by such Selling Shareholder or a valid security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling ShareholderSecurities.
(e) Upon payment of the purchase price for the Shares Securities to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such SharesSecurities, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Securities is unnecessary because such Securities are already in possession of Cede or such nominee), registration of such Shares Securities in the name of Cede or such other nominee (unless registration of such Securities is unnecessary because such Securities are already registered in the name of Cede or such nominee), and the crediting of such Shares Securities on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters (assuming that neither DTC nor any such either Underwriter has notice of any “adverse claim (claim,” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (the “UCC”)), to such Securities), (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 entitlement” in respect of such Shares Securities and (CB) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares 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, (xI) such Shares Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (yII) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zIII) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (IV) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Securities, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters, (V) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (VI) if at any time DTC or other securities intermediary does not have sufficient Securities to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Securities then held by DTC or such securities intermediary.
(f) Such Selling Shareholder is has not prompted by taken, directly or indirectly, any information concerning action designed to or that has constituted or that might reasonably be expected to cause or result under the Exchange Act or otherwise in stabilization or manipulation of the price of any security of the Company to facilitate the sale or its subsidiaries which is not set forth in resale of the Time of Sale Prospectus to sell its Shares pursuant to this AgreementSecurities.
(g) (i) Each documentNo consent, if anyapproval, filed authorization, filing with or to be filed pursuant to order of any court or governmental agency or body is required for the Exchange Act and incorporated performance by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares Selling Shareholder in connection with the offering when sale and delivery of the Prospectus is not yet available to prospective purchasers and at Securities hereunder or the Closing Date (consummation of the transactions contemplated by this Agreement, except such as defined in Section 5)have been already obtained under the Act or as may be required under the Exchange Act, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light rules of the circumstances under New York Stock Exchange, FINRA or the blue sky laws of any jurisdiction in which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading Securities are offered and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofsold.
(h) Such Selling Shareholder is has not prepared or had prepared on its behalf or used or referred to, any “free writing prospectus” (1) an employee benefit plan subject to Title I of ERISAas defined in Rule 405), (2) a plan and has not distributed any written materials in connection with the offer or account subject to Section 4975 sale of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseSecurities.
(i) Neither such Selling Shareholder None of the Trust nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to payaffiliates directly, or authorization indirectly through one or approval of the paymentmore intermediaries, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that iscontrols, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republicby, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions is under common control with any Person, member firm of FINRA or in any country or territory, that at is a person associated with a member (within the time meaning of the dealing or transaction is or was the subject FINRA By-Laws) of SanctionsFINRA.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds Any certificate signed by any officer of the offering, Company and delivered to the Underwriters or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or counsel for the Underwriters in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance connection with the Anti-Corruption Lawsoffering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter; and any certificate signed by the Anti-Money Laundering Laws, Selling Shareholders and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect delivered to the Anti-Corruption Laws, Underwriters or to counsel for the Anti-Money Laundering Laws or Sanctions is pending or, to Underwriters in connection with the knowledge offering of the Securities shall be deemed a representation and warranty by such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue as to maintain policies and procedures reasonably designed the matters covered thereby, to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereineach Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Armstrong World Industries Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.Mellon Investor Services LLC, as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states jurisdictions in connection with the offer and sale of the Shares.
(c) Such With respect to any Shares to be sold by such Selling Shareholder that are outstanding on the date hereof, such Selling Shareholder has, and with respect to such Shares and any additional Shares to be sold by the undersigned upon exercise or conversion of Specified Options or Specified Warrants, on the each Closing Date or Option Closing Date, as applicable, such Selling Shareholder has or will have fully paid for such Shares, will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder Shares, free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the such Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (CB) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iviii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the representations under this paragraph 2(g) shall only apply to any untrue statement of a material fact or omission to state a material fact made in reliance upon and in conformity with information furnished by such Selling Shareholder in writing to the Company relating to such Selling Shareholder expressly for use in the Registration Statement, Prospectus, Time of Sale Prospectus and each broadly available road show.
(h) Except for the Prospectus, the preliminary prospectus and the free writing prospectuses, if any, identified in Schedule III hereto, and electronic road shows, if any, each furnished to you before first use, such Selling Shareholder has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.
(i) Such Selling Shareholder is not directly or indirectly an affiliate of or associated with any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and none of the proceeds received by the undersigned from the sale of the Shares to be sold by the undersigned pursuant to the Underwriting Agreement will be paid to a member of FINRA or any affiliate of (or person “associated with,” as such terms are used in the Rules of FINRA) such member.
(j) Such Selling Shareholder has executed a “lock-up” agreement, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, that is in full force and effect as of the date hereof and shall be in full force and effect on the Closing Date.
(k) Except as described in the Registration Statement, Time of Sale Prospectus and Prospectus, the Prospectusno stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or any amendments other taxes are payable by or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 on behalf of the Code Underwriters in connection with the sale or (3) an entity deemed to hold “plan assets” delivery of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, Shares to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria)Underwriters.
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, Agreement the Custody Agreement signed by such Selling Shareholder Fidelity Investments Charitable Gift Fund (“Fidelity”) and Computershare Trust CompanyBroadridge Corporate Issuer Solutions, N.A.Inc., as Custodian, relating to the deposit of the Firm Shares to be sold by such Selling Shareholder Fidelity (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Selling ShareholderFidelity’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document other organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural person)Shareholder, or any agreement or other instrument binding upon such Selling Shareholder that is material to such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this AgreementAgreement or, if applicable, the Custody Agreement or Power of Attorney of such Selling ShareholderAttorney, except as may have been obtained prior to the execution of this Agreement or such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by Fidelity and are valid and binding agreements of Fidelity.
(d) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by 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 AgreementAgreement and, if applicable, the Custody Agreement and the Power of Attorney Attorney, and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))UCC to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section paragraph 2(g) are limited in all respects to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I Time of ERISASale Prospectus, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, Prospectus or any person acting in an official capacity for amendments or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholdersupplements thereto.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (U.S. Silica Holdings, Inc.)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that, as of the date hereof, the time of purchase and any additional time of purchase:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder now is and, at the time of delivery of such Shares (whether the time of purchase or any additional time of purchase, as the case may be), will be the beneficial owner of the number of Shares to be sold by such Selling Shareholder pursuant to this Agreement and is has and, at the time of delivery thereof, will have valid and binding agreement marketable title to such Shares, and upon delivery of and payment for such Selling Shareholder.Shares (whether at the time of purchase or any additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) The execution and delivery by such Selling Shareholder ofhas and, and at the performance by such Selling Shareholder time of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement (whether the “time of purchase or any additional time of purchase, as the case may be), will have the legal right, power and capacity, and all authorizations and approvals required by law (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement and the Custody Agreement”Agreement (as defined below) and to execute 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural persondefined below), or any agreement or other instrument binding upon such Selling Shareholder or any judgment(ii) sell, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sellassign, transfer and deliver the Shares to be sold by such Selling Shareholder or pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such Selling Shareholder herein;
(c) this Agreement and the custody agreement (the "Custody Agreement"), dated [a security entitlement recent date before the trade date], between [ ], as custodian (the "Custodian"), and the Selling Shareholders and the power of attorney signed in respect connection with the Custody Agreement (the "Power of Attorney") have each been duly executed and delivered by such Selling Shareholder, and each is a legal, valid and binding agreement of such Shares.Selling Shareholder enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(d) The each Preliminary Prospectus distributed in connection with the offering of the Shares, as such Preliminary Prospectus relates to such Selling Shareholder, did not, as of its date, and does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the Registration Statement, as it relates to such Selling Shareholder, did not when it became effective, does not and, at the time of purchase and any additional time of purchase and any time at which any sales with respect to which the Prospectus is delivered, 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 the Prospectus, as it relates to such Selling Shareholder, will not, as of its date and at the time of purchase and any additional time of purchase and any time at which any sales with respect to which the Prospectus is delivered, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, with respect to each of the non-executive selling shareholders named in Schedule B (each, a "Non-Executive Selling Shareholder"), this subclause (d) shall apply solely with respect to statements or omissions from the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto of which such Non-Executive Selling Shareholder has knowledge or made in reliance upon written information furnished to the Company by such Non-Executive Selling Shareholder expressly for use therein;
(e) all information with respect to such Selling Shareholder included in the Registration Statement or the Prospectus complied and will comply with all applicable provisions of the Act;
(f) such Selling Shareholder has duly and irrevocably authorized the Representatives of the Selling Shareholders, on behalf of such Selling Shareholder, to execute and deliver this Agreement and any other documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Shares to be sold by such Selling Shareholder pursuant to this Agreement and receive payment therefore pursuant hereto;
(g) the sale of the Shares to be sold by such Selling Shareholder pursuant to this Agreement is not prompted by any information concerning the Company or any Subsidiary which is not set forth in the Prospectus;
(h) neither such Selling Shareholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or which has constituted or might reasonably be expected to cause or result in, under the Exchange Act, the ISL or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(i) there are no affiliations or associations between any member of the NASD and such Selling Shareholder, except as set forth in the Registration Statement and the Prospectus; none of the proceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder pursuant to this Agreement will be paid to a member of the NASD or any affiliate of such member;
(j) at the time of purchase and each additional time of purchase, all stock transfer or other taxes (other than income taxes), if any, that are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Shareholder to the several Underwriters hereunder shall have been fully paid or provided for by such Selling Shareholder, and all laws imposing such taxes shall have been fully complied with;
(k) no approval, authorization, consent or order of or filing with any Israeli or United States federal, state, local or foreign governmental or regulatory commission, court, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NASDAQ), is required by such Selling Shareholder in connection with the sale of the Shares to be sold by such Selling Shareholder pursuant to this Agreement or the consummation by such Selling Shareholder of the transactions contemplated hereby, by the Custody Agreement and or by the Power of Attorney other than registration of such Shares under the Act, which has been effected, and any necessary qualification under the ISL, the securities or blue sky laws of the various jurisdictions in which such Shares are being offered by the Underwriters or under the rules and regulations of the NASD, which approvals have been obtained as of the date hereof;
(l) such Selling Shareholder has not, prior to the execution of this Agreement, distributed any "prospectus" (within the meaning of the Act) or offering material in connection with the offering or sale of the Shares other than the Registration Statement and the then most recent Preliminary Prospectus and will not, at any time on or after the execution of this Agreement, distribute any "prospectus" (within the meaning of the Act) or offering material in connection with the offering or sale of the Shares other than the Registration Statement and the then most recent Prospectus;
(m) share certificates accompanied by duly authorizedexecuted share transfer deeds with respect to the Shares to be sold by the Selling Shareholders have been placed in custody, for delivery pursuant to the terms of this Agreement, under the Custody Agreement and Power of Attorney duly authorized (if applicable), executed and delivered by such Selling Shareholder, in the form heretofore furnished to you with the Company, as Custodian (the "Custodian") and the Attorneys-in-Fact appointed therein; the Ordinary Shares represented by the certificates so held in custody for each Selling Shareholder are subject to the interests hereunder of the Underwriters; the arrangements for custody and delivery of such certificates, made by such Selling Shareholder hereunder and under the Custody Agreement, are valid and binding agreements not subject to termination by any acts of such Selling Shareholder., or by operation of law, whether by the death or incapacity of such Selling Shareholder or the occurrence of any other event; and if any such death, incapacity or, if the Selling Shareholder is a corporate entity, by dissolution or other termination of corporate existence, or any other such event shall occur before the delivery of such Shares hereunder, such certificates will be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Custody Agreement and Power of Attorney as if such death, incapacity or, if the Selling Shareholder is a corporate entity, such dissolution or other termination of corporate existence, or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, dissolution or other termination of corporate existence or other event;
(en) Upon neither the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney nor the sale by such Selling Shareholder of the Shares to be sold by such Selling Shareholder pursuant to this Agreement nor the consummation of the transactions contemplated hereby or thereby will conflict with, result in any breach or violation of or constitute a default under (or constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under) (i) the memorandum of association, articles of association, charter or by-laws or other relevant organizational documents or (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or any of its properties may be bound or affected, or (iii) any federal, state, local or foreign law, regulation or rule, or (iv) any decree, judgment or order applicable to such Selling Shareholder, except in the case of sub-clause (ii) above for such breaches, violations or defaults that would not, individually or in the aggregate, result in a Material Adverse Effect;
(o) each Selling Shareholder has validly appointed an authorized agent for service of process in the United States pursuant to this Agreement and in connection with the Registration Statement; and
(p) upon payment of the purchase price 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 The Depository Trust Company (“"DTC”"), registration of such Shares in the name of Cede or such other nominee nominee, and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any "adverse claim (claim," within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “"UCC”")), to such Shares), (A) DTC shall be a “"protected purchaser” of such Shares ," within the meaning of Section 8-303 of the UCC, of such Shares and will acquire its interest in the Shares (including, without limitation, all rights that such Selling Shareholder had or has the power to transfer in such Shares) free and clear of any adverse claim within the meaning of Section 8-102 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 (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “"adverse claim”, ," within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for . 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 in the Company’s 's share registry in accordance with its certificate articles of incorporation, bylaws association and applicable law, (y) DTC will be registered as a “"clearing corporation” ," within the meaning of Section 8-102 of the UCC UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such . In addition, any certificate signed by any officer of any Selling Shareholder is not prompted or any of such Selling Shareholder's subsidiaries or by any information concerning Selling Shareholder or by any Representative of the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant Selling Shareholders and delivered to the Exchange Act and incorporated by reference in Underwriters or counsel for the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares Underwriters in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of Shares shall be deemed to be a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading representation and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing warranty by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, normatters covered thereby, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling ShareholderUnderwriter.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Ituran Location & Control Ltd.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare American Stock Transfer & Trust Company, N.A.LLC, as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(gh) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act Selling Shareholder named in Schedule I-A hereto represents and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of warrants that the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iviii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 51), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section 2(g) are limited paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus, Prospectus or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative (i) None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five last 5 years, such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(jiv) Such (i) None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has (a) taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds of the offeringto any Government Official in order to influence official action, or lend, contribute or otherwise make available such proceeds to any subsidiaryperson in violation of any applicable anti-corruption laws, joint venture partner or (b) used any corporate funds for any unlawful contribution, gift, entertainment or other Person.
(i) unlawful expense relating to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, ispolitical activity, or whose government is(c) made, the subject offered, agreed, requested or taken an act in furtherance of Sanctions;
any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit; (ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such such Selling Shareholder and each of its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and, other than with respect to those Selling Shareholders that are natural persons, have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (iii) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder, to the extent not a natural person, and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such the Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (P10, Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally and not jointly represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorizedauthorized (if such Selling Shareholder is not a natural person), executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene (A) any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation) or other organizational documents of such Selling Shareholder (if such Selling Shareholder is a corporation, limited liability company, partnership or other entity), or (B) any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the case of (B), for such violations that would not reasonably be expected to have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated by this Agreement;, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder[reserved].
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document; provided, if anyhowever, filed or to be filed pursuant that, except with respect to the Exchange Act and incorporated by reference in Selling Shareholder Information (as defined herein), no representation or warranty is being made hereby as to whether the Registration Statement, the Time of Sale Prospectus or the Prospectus complied contains any untrue statement of a material fact or will comply when so filed omits to state any material fact required to be stated therein or necessary in all material respects with order to make the Exchange Act and the applicable rules and regulations statements therein, in light of the Commission thereundercircumstances in which they are made, not misleading.
(iii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; , provided that the such representations and warranties set forth in this Section 2(gclause (h) are limited apply, with respect to a Selling Shareholder, only to statements or omissions made in the each Registration Statement, the Time of Sale Prospectus, the Prospectus, or Prospectus and any further amendments or supplements thereto based to the Registration Statement, the Time of Sale Prospectus and the Prospectus that are made in reliance upon and in conformity with written information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein; provided, further, that it being understood and is agreed that the only such information is that described as furnished by such in Section 11(b) hereof.
(h) Such Selling Shareholder is not to the Company consists only of (1A) an employee benefit plan subject the legal name, address and the number of Shares owned by such Selling Shareholder before and after the offering and (B) the other information with respect to Title I of ERISAsuch Selling Shareholder (excluding percentages) which appear in the table (and corresponding footnotes) under the caption “Selling Shareholder” (such information with respect to such Selling Shareholder, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseSelling Shareholder Information”).
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative (i) None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political officeif applicable) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, (if applicable) to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, such Such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(ja) Such Selling Shareholder will not, directly or indirectly, use the proceeds None of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or (if applicable) any of its subsidiaries with respect to the Anti-Corruption Lawssubsidiaries, the Anti-Money Laundering Laws or Sanctions is pending or, (if applicable) to the knowledge of such Selling Shareholder, threatened. Such any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) such Selling Shareholder and each of its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve conducted their businesses in compliance with applicable anti-corruption laws and (c) neither the Anti-Corruption LawsSelling Shareholder nor any of its subsidiaries will use, directly or indirectly, the Antiproceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereincorruption laws.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by or on behalf of such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.Inc., as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the case of clauses (i) and (iv), as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement, the Custody Agreement and the Power of Attorney, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as have already been obtained or as may be required under the Securities Act, the Exchange Act or the rules and regulations thereunder, under FINRA or such as may be required by the securities or Blue Sky laws of the various states and non-US jurisdictions in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 8501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, subject to the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) Such Selling Shareholder is not prompted by any material information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, as of the date of such amendment or supplement, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 55 hereof), the Time of Sale Prospectus, as then amended or supplemented by the Company, as of the date of such amendment or supplement, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading; and (viiv) the Prospectus does not contain and, as amended or supplemented, as of the date of such amendment or supplement, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , provided, that the representations and warranties set forth in this Section 2(g) paragraph are limited solely to statements or omissions made in reliance upon information relating to such Selling Shareholder furnished in writing to the Company or the Representatives by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus, it being understood and agreed that the only information furnished in writing by such Selling Shareholder consists of the name of such Selling Shareholder, the number of offered shares and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Registration Statement, the Time of Sale Prospectus or any Prospectus in the table (and corresponding footnotes) under the caption “Principal and Selling Shareholders” (with respect to each Selling Shareholder, the “Selling Shareholder Information”) and provided further that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus, Prospectus or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative (i) None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, such Such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(ja) Such None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or controlled affiliate thereof has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds of the offeringto any Government Official in order to influence official action, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or person in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Antiapplicable anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person corruption laws; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and each of its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such the Selling Shareholder, threatened.
(j) Such Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise. Such Selling Shareholder is (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Code, or (iii) an entity deemed to hold “plan assets” of any such plan or account, and hereby represents and warrants, solely for purposes of assisting each Underwriter in relying on the exception from fiduciary status under U.S. Department of Labor Regulations set forth in Section 29 CFR 2510.3-21(c)(1), that a fiduciary acting on its subsidiaries behalf is causing such Selling Shareholder to enter into this Agreement and the transactions contemplated hereby and that such fiduciary (a) is an entity specified in Section 29 CFR 2510.3-21(c)(1)(i)(A)-(E); (b) is independent (for purposes of Section 29 CFR 2510.3-21(c)(1)) of each Underwriter; (c) is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies, including such Selling Shareholder’s transactions with each Underwriter hereunder; (d) has been advised that, with respect to each Underwriter, neither the Underwriter nor any of its respective affiliates have instituted and maintained and has undertaken or will continue undertake to maintain policies and procedures reasonably designed to promote and achieve compliance provide impartial investment advice, or has given or will give advice in a fiduciary capacity, in connection with such Selling Shareholder’s transactions with the Anti-Corruption LawsUnderwriter contemplated hereby; (e) is a “fiduciary” under Section 3(21)(a) of ERISA or Section 4975(e)(3) of the Code, the Anti-Money Laundering Lawsor both, Sanctionsas applicable, with respect to, and is responsible for exercising independent judgment in evaluating, such Selling Shareholder’s transactions with each Underwriter contemplated hereby; and (f) understands and acknowledges the representations existence and warranties contained hereinnature of the underwriting discounts, commissions and fees, and any other related fees, compensation arrangements or financial interests, described in the Time of Sale Prospectus and the Prospectus; and understands, acknowledges and agrees that no such fee or other compensation is a fee or other compensation for the provision of investment advice, and that none of the Underwriters nor any of their respective affiliates, nor any of their respective directors, officers, members, partners, employees, principals or agents has received or will receive a fee or other compensation from such Selling Shareholder or such fiduciary for the provision of investment advice (rather than other services) in connection with such Selling Shareholder’s transactions with each Underwriter contemplated hereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.ChaseMellon Shareholder Services LLC, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “"Custody Agreement”") and the Power of Attorney appointing certain individuals as such Selling Shareholder’s 's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “"Power of Attorney”") will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(f) Such Selling Shareholder is not prompted by any Without having undertaken to determine independently the accuracy or completeness of the information concerning the Company or its subsidiaries which is not set forth contained in the Time of Sale Prospectus Registration Statement and Prospectus, to sell its Shares pursuant to this Agreement.
(g) the Selling Shareholder's knowledge, (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through you expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.Mellon Investor Services LLC, as Custodian (the “Custodian”), relating to the deposit of the Shares 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 (the “Attorneys-in-Fact”) to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) ), do not and will not (i) contravene any provision of applicable lawlaw or regulation, (ii) contravene, conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which such Selling Shareholder 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, (iii) result in any violation of the provisions of the certificate of incorporation, by-laws constitution, bylaws or similar constitutional document constitutive documents of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (iv) contravene, conflict with, or result in a breach or violation of, or constitute a default under, any agreement or other instrument binding upon such Selling Shareholder statute or any rule, regulation, judgment, order or decree of any governmental bodycourt or governmental, administrative or regulatory agency or court body or stock exchange authority having jurisdiction over such Selling Shareholder or any of its assets or properties, except where such defaults under sub-sections (i) and (ii) would not, individually or in the aggregate, impair in any material respect the consummation of such Selling Shareholder’s obligations hereunder and thereunder.
(c) No action, and no consent, approval, authorization authorization, order, certificate, license or order permit of, clearance by, or filing, registration or qualification with, any court or administrative, governmental or regulatory agency or body or agency stock exchange authority having jurisdiction over such Selling Shareholder is required for the execution, delivery and performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney of by such Selling ShareholderShareholder or the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except such (A) as have been obtained or made prior to the date of this Agreement and are in full force and effect, (B) for the registration under the Securities Act of the sale of the Shares or (C) as may be required by the securities or Blue Sky laws of the various U.S. states or under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) in connection with the offer and sale of the Shares.
(cd) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(de) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(ef) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fg) No stamp or other issuance or transfer taxes or duties and no withholding taxes are or will be payable by or on behalf of the Underwriters, or otherwise imposed on any payments made to the Underwriters, to the government of India, Mauritius or any political subdivision or taxing authority thereof in connection with (1) the execution, delivery or performance of this Agreement or (2) the sale or delivery of the Shares to be sold by such Selling Shareholder to or for the respective accounts of the Underwriters as set forth in each of the Time of Sale Prospectus and the Prospectus, and pursuant to the terms of this Agreement, except for stamp duty payable on the registration of this Agreement with the Registrar General in Mauritius.
(h) The Founders (as defined below) are Indian residents and represent and warrant that the Shares proposed to be sold by them under the terms of this Agreement were acquired by them pursuant to and in compliance with the applicable Indian Overseas Direct Investment Regulations, and that they have taken all steps required to be taken by them to ensure compliance with any reporting and other procedures required under the applicable Indian Overseas Direct Investment Regulations.
(i) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries Subsidiaries which is not set forth in the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(gj) In the case of the Selling Shareholders listed in Schedule V hereto (the “Founders”), (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, at the Closing Date and the Option Closing Date, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) each of the Registration Statement and the Prospectus, when it became effective or as of its issue date, as applicable, and at the date hereof does not contain any untrue statement Closing Date and the Option Closing Date, complied or will comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act, the Exchange Act and the applicable rules and regulations of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, as applicable, (iviii) the Time of Sale Prospectus complies in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and does not, and at the time of each sale of the Shares in connection with the offering Offering when the Prospectus is not yet available to prospective purchasers and purchasers, at the Closing Date (as defined in Section 5)and at the Option Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and (viv) the Prospectus Prospectus, as of its issue date, at the Closing Date and at the Option Closing Date does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; , except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein. Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a Material Adverse Effect.
(k) In the case of the Selling Shareholders other than the Founders, (i) Each of the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, at the Closing Date and the Option Closing Date, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the Offering when the Prospectus is not yet available to prospective purchasers, at the Closing Date and at the Option Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus, as of its issue date, at the Closing Date and at the Option Closing Date does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this Section 2(gparagraph 2(k) are limited to statements or omissions in the Registration Statement, the Time of Sale Prospectus, the Prospectus, Prospectus or any amendments or supplements thereto based thereto, made in reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(hl) Such Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the Offering, except for such rights as have been waived or which are described in each of the Registration Statement, Time of Sale Prospectus and Prospectus (and which have been complied with).
(m) Such Selling Shareholder does not have any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Shareholder to the Underwriters pursuant to this Agreement, except for such rights which have been duly waived; and, except as described in each of the Time of Sale Prospectus and the Prospectus, such Selling Shareholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company.
(n) There are no contracts, agreements or understandings between such Selling Shareholder and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this Offering.
(o) Such Selling Shareholder is not (1) an employee benefit plan subject a FINRA broker-dealer. Except as disclosed in writing to Title I the Representatives and its counsel, there are no affiliations or associations between any member of ERISA, (2) a plan or account subject to Section 4975 FINRA and such Selling Shareholder; none of the Code proceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder pursuant to this Agreement will be paid to a member of FINRA or any affiliate of (3or person “associated with”, as such terms are used in the Rules of FINRA) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwisemember.
(ip) Neither such Such Selling Shareholder nor represents that it has not prepared or had prepared on its behalf or used or referred to any free writing prospectus and represents that it has not distributed any written materials in connection with the offer or sale of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such the Shares.
(q) Such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of valuenot taken, directly or indirectly, any action designed to any government official (including any officer cause or employee of a government or government-owned or controlled entity or of a public international organizationresult in, or any person acting in an official capacity for that has constituted or on behalf might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the foregoing, or any political party or party official or candidate for political officeCompany.
(r) (“Government Official”i) in order to improperly influence official action by that Government Official for the benefit of such Such Selling Shareholder or its subsidiaries or affiliatesrepresents that neither it nor, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate knowledge of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any director, officer, employee, agent, affiliate or representativerepresentative of such Selling Shareholder, is a Person that is, or is owned or controlled by one or more Persons a Person that areis:
(A) the subject of any sanctions administered or enforced by the Sanctions, ornor
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, CrimeaBurma/Myanmar, Cuba, Iran, North Korea Korea, Sudan and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.Boston EquiServ, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “"Custody Agreement”") and the Power of Attorney appointing certain individuals as such Selling Shareholder’s 's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “"Power of Attorney”") will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(f) Such With respect to information furnished to you in writing by or on behalf of such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) expressly for use therein, (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Answer Think Consulting Group Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) any provision of applicable law, or (ii) the operating agreement, limited liability company agreement, partnership agreement, certificate of incorporation, by-laws or similar constitutional other equivalent document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling ShareholderShareholder except in the case of clauses (iii) and (iv) as would not, individually or in the aggregate, have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated by this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) Such Selling Shareholder is not prompted by any information concerning has delivered to the Company or its subsidiaries which is not set forth Representative an executed lock-up agreement in substantially the Time of Sale Prospectus to sell its Shares pursuant to this form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such any Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such furnished by the Selling Shareholders consists of the following information in Section 11(b) hereofthe Prospectus furnished on behalf of each Selling Shareholder: the name and address of each Selling Shareholder, the number of shares to be sold by each Selling Shareholder and any footnotes regarding beneficial ownership related thereto (the “Selling Shareholder Information”).
(hg) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is 50% or more owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (at present, including, without limitation, the so-called Donetsk People’s Republic, Republic and the so-called Luhansk People’s RepublicRepublic regions of Ukraine, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or knowingly indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions in violation of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, such Such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions in violation of Sanctions.
(ja) Such None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative or controlled affiliate, in each case in their capacity as such, has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds of the offeringto any Government Official in order to influence official action, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or person in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Antiapplicable anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person corruption laws; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and each of its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such the Selling Shareholder, threatened. .
(vi) Such Selling Shareholder represents and its subsidiaries and affiliates have instituted and maintained and will continue warrants that it is not (i) an employee benefit plan subject to maintain policies and procedures reasonably designed Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to promote and achieve compliance with Section 4975 of the AntiInternal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-Corruption Laws101, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinor otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (CCC Intelligent Solutions Holdings Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally, and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, Agreement and the Custody Agreement signed by such Selling Shareholder and Computershare American Stock Transfer & Trust Company, N.A.LLC, as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document other organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder that is material to such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except as may have been obtained prior to the time of the execution of this Agreement or such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by 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, Agreement and the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares, except for any claims, liens, equities or other encumbrances arising under the Custody Agreement.
(d) The Custody Agreement and the Power of Attorney have has been duly authorized, executed and delivered by such Selling Shareholder and are is a valid and binding agreements agreement of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) In the case of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole.
(g) Such Selling Shareholder is not prompted by any material information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(gh) (i) Each document, if any, filed To the extent that any statements or to be filed pursuant omissions made in the Registration Statement are made in reliance upon and in conformity with written information furnished to the Exchange Act and incorporated Company by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereundersuch Selling Shareholder for inclusion therein, (ii) each part of the Registration StatementStatement did not, when such part it became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and with respect to such information.
(vii) To the extent that any statements or omissions made in the Prospectus does not contain andare made in reliance upon and in conformity with written information furnished to the Company by such Selling Shareholder for inclusion therein, the Prospectus will not, as amended or supplementedof its date, if applicable, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided misleading with respect to such information.
(j) To the extent that the representations and warranties set forth in this Section 2(g) are limited to any statements or omissions made in the Registration StatementTime of Sale Prospectus or a broadly available road show, if any, are made in reliance upon and in conformity with written information furnished to the Company by such Selling Shareholder for inclusion therein, neither the Time of Sale Prospectus nor such road show, when considered together with the Time of Sale Prospectus, as of its date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use statements therein, it being understood and agreed that in the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 light of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account circumstances under Section 3(42) of ERISAwhich they were made, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries misleading with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereininformation.
Appears in 1 contract
Sources: Underwriting Agreement (Sagent Pharmaceuticals, Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare American Stock Transfer & Trust Company, N.A.Company LLC, as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural person)Shareholder, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such The Selling Shareholder is not prompted to sell the Shares by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iviii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section paragraph 2(g) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such the Selling Shareholder furnished to the Company in writing by such the Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofTime of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
(h) Such Selling Shareholder is not Stockholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3Lock-101, or otherwiseup Agreement”).
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative (i) None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, such Such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(ja) Such None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds of the offeringto any Government Official in order to influence official action, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or person in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Antiapplicable anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person corruption laws; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and each of its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such the Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) Such Selling Shareholder now has, and on the Closing Date will have, valid and marketable title to the Shares to be sold by such Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) Such Selling Shareholder now has, and on the Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement has and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is are the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document agreements of such Selling Shareholder (if enforceable against such Selling Shareholder is not a natural person), in accordance with their terms.
(d) Neither the execution and delivery of this Agreement or any agreement the Custody Agreement by or other instrument binding upon on behalf of such Selling Shareholder nor the consummation of the transactions herein or any judgment, order therein contemplated by or decree on behalf of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no Shareholder requires any consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, official (except such as may be required by under the Act and the Exchange Act or such as may be required under state securities or Blue Sky laws of governing the various states in connection with the offer purchase and sale distribution of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date or conflicts or will have, valid title toconflict with or constitutes or will constitute a breach of, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect ofdefault under, the Shares or violates or will violate, any agreement, indenture or other instrument to be sold by which such Selling Shareholder free and clear is a party or by which such Selling Shareholder is or may be bound or to which any of all security interestssuch Selling Shareholder's property or assets is subject, claimsor any statute, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, rule, regulation, ruling, judgment, injunction, order or decree applicable to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements to any property or assets of such Selling Shareholder.
(e) Upon payment for The Registration Statement and the Shares Prospectus, insofar as they relate to be sold by such Selling Shareholder pursuant to this AgreementShareholder, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee do not and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(iiif) Such Selling Shareholder does not have any knowledge or any reason to believe that the Registration Statement as of or the date hereof does not contain Prospectus (or any amendment or supplement thereto) contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(ivg) The representations and warranties of such Selling Shareholder in the Time of Sale Prospectus does notCustody Agreement are, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5)will be, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading true and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofcorrect.
(h) Such Selling Shareholder is has not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of valuetaken, directly or indirectly, any action designed to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order that might reasonably be expected to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation stabilization or manipulation of any Antithe price of the Common Stock to facilitate the sale or resale of the Shares, except for the lock-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating up arrangements described in the offering, whether as underwriter, advisor, investor or otherwise)Prospectus.
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to to, and agrees with each with, the Underwriters as of the Underwriters thatdate hereof, and as of the Option Closing Date, if any, with respect to such Selling Shareholders respective Option Shares as follows:
(a) This Such Selling Shareholder has now and will have on each Option Closing Date, if any, good and valid title to the Option Shares free and clear of any lien, charge, claim, encumbrance, pledge, security interest, stockholders' agreement, voting trust, community property right, defect in title, equitable interest or other equities or restrictions of any kind whatsoever (including any liability for estate or inheritance taxes and claims of any creditor, devisee, legatee or beneficiary); other than as described in this Agreement or disclosed in the Registration Statement or Prospectus, there are no outstanding options, warrants, rights or other agreements or arrangements with respect to any of the Option Shares; the Selling Shareholder has been and will have on each Option Closing Date, if any, full right, power and authority to sell, transfer and deliver the Option Shares hereunder; and upon delivery of the Option Shares against payment of the purchase price therefor as contemplated in this Agreement, each of the Underwriters, who has purchased in good faith and without notice of any adverse claim, will receive good and marketable title to the Option Shares purchased by it, free and clear of any lien, charge, claim, encumbrance, pledge, security interest, stockholders' agreement, voting trust, community property right, defect in title, equitable interests or other equities or restrictions of any kind whatsoever (including any liability for estate or inheritance taxes and claims of any creditor, devisee, legatee or beneficiary).
(b) Such Selling Shareholder has duly authorizedauthorized (if applicable), executed and delivered by or on behalf delivered, in the forms theretofore furnished to the Representative, a Lock-up Agreement (the "Seller Lock-Up Agreement"), a Stock Power (the "Stock Power"), a Power of such Selling Shareholder Attorney (the "Power of Attorney") and is a Letter of Transmittal and Custody Agreement (the "Custody Agreement"); each of the Custody Agreement, the Stock Power, the Power of Attorney and the Seller Lock-Up Agreement constitutes a legal, valid and binding agreement of such the Selling Shareholder, enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(bc) The All authorizations, approvals, consents and orders necessary for the execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust CompanyAgreement, N.A.the Stock Power, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals and the Seller Lock-Up Agreement and the sale and delivery of the Option Shares hereunder (other than such authorizations, approvals, orders or consents as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby may be necessary under state securities laws) have been obtained and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of are in full force and effect; and such Selling Shareholder (if such Selling Shareholder is not a natural person)has full right, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, power and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of authority to enter into and perform its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement Stock Power and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesSeller Lock-Up Agreement.
(d) The Custody Such Selling Shareholder has not distributed and will not distribute any prospectus or other offering material in connection with the distribution of the Securities.
(e) This Agreement and the Power of Attorney have has been duly authorizedauthorized (if applicable), executed and delivered by such Selling Shareholder and are is a legal, valid and binding agreements agreement of such Selling Shareholder.
, enforceable in accordance with its terms, except insofar as indemnity and contribution provisions may be limited by applicable laws (eincluding, without limitation, federal laws) Upon payment for or equitable principles and except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles. The execution, delivery and performance of this Agreement, the Shares to be sold Custody Agreement, the Stock Power, the Power of Attorney and the Seller Lock-Up Agreement and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder pursuant has not conflicted and will not conflict with and has not resulted and will not result in a breach of or default under (i) any will, license, contract, indenture, mortgage, lease, deed of trust, voting trust agreement, bond, debenture, stockholders' agreement, note, loan or credit agreement or other agreement or instrument to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, which such Selling Shareholder is a party or by which such Selling Shareholder is or may assume that when be bound or to which any of its properties (including the Option Shares) is or may be subject, or any indebtedness, or (ii) any statute, judgment, decree, order, rule or regulation applicable to such paymentSelling Shareholder of any arbitrator, delivery court, regulatory body or administrative agency or other governmental agency or body, domestic or foreign, having jurisdiction over such Selling Shareholder or any of such Selling Shareholder's activities or properties (including the Option Shares), except for conflicts, breaches and crediting occur, (x) defaults which will not adversely affect the consummation by such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 Selling Shareholder 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 UCCtransactions contemplated hereby.
(f) Such Selling Shareholder The sale of the Option Shares hereunder is not prompted by any information concerning the Company or its subsidiaries which is material and adverse to the Company taken as a whole and which is not set forth in the Time of Sale Prospectus Prospectus; the information relating to sell its Shares pursuant to this Agreement.such Selling
(g) (i) Each document, if any, filed or to be filed pursuant Nothing material has come to the Exchange Act and incorporated by reference in the Time attention of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each Selling Shareholder to cause such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit Selling Shareholder to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by believe that the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the 's representations and warranties set forth contained in this Section 2(g) Agreement are limited to statements or omissions not accurate in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofmaterial respect.
(h) Such Selling Shareholder There is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. threatened against such Selling Shareholder or involving its properties or activities any material action, inquiry, investigation, suit or proceeding (and, to the knowledge of such Selling Shareholder, there are no circumstances that would be expected to give rise to the same) which (i) questions the validity of this Agreement, the Custody Agreement, the Stock Power, the Power of Attorney, the Seller Lock-Up Agreement or any action taken or to be taken by such Selling Shareholder in connection herewith or therewith, (ii) has or reasonably would be expected to materially adversely affect the Company which is not disclosed in the Prospectus or (iii) reasonably would be expected to adversely affect the consummation by such Selling Shareholder of the transactions contemplated hereby or thereby.
(i) Except as and to the extent disclosed in the Registration Statement or the Prospectus, such Selling Shareholder does not have any registration rights, rights of first refusal, co-sale rights, preemptive rights or other similar rights with respect to any securities of the Company; such Selling Shareholder has waived all of those rights which it may have with respect to the Option Shares and the transactions contemplated hereby; and such Selling Shareholder does not have any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company, other than those disclosed in the Registration Statement or the Prospectus.
(j) Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained has not since the initial filing of the Registration Statement with the Commission (i) sold, bid for, purchased, attempted to induce any person to purchase or paid anyone any compensation for soliciting purchases of any securities of the Company or (ii) paid or agreed to pay to any person any compensation for soliciting
(k) Such Selling Shareholder has not taken and will continue to maintain policies and procedures reasonably not take, directly or indirectly, any action which is designed to promote or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the distribution of the Securities.
(l) Any certificate signed by or on behalf of such Selling Shareholder and achieve compliance with delivered to the Anti-Corruption Laws, Underwriters or Underwriters' Counsel shall be deemed a representation and warranty by such Selling Shareholder to the Anti-Money Laundering Laws, Sanctions, and with Underwriters or Underwriters' Counsel as to the representations and warranties contained hereinmatters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Skymall Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly with the other Selling Shareholders, represents and warrants to and agrees with each of the Underwriters on the date hereof, on the Closing Date and on each Option Closing Date, if any, that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The Neither the execution and delivery by such Selling Shareholder of, and nor the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company▇▇▇▇▇ Fargo Bank, N.A., as Custodian, relating to the deposit of the Shares 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”) ), will not contravene any provision of applicable lawconflict with, contravene, result in a breach or violation of, or the certificate imposition of incorporationany lien, by-laws charge or similar constitutional document encumbrance upon any assets of such Selling Shareholder (if such Selling Shareholder is not a natural person)pursuant to, or constitute a default under, (i) any agreement or other instrument binding upon such Selling Shareholder or any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over such Selling Shareholder if any such breach, violation, lien, charge, encumbrance or default would be material in any respect, provided that no representation, warranty or agreement is made in this clause (i) with respect to the antifraud provisions of federal and state securities laws, (ii) the charter or bylaws (or other organizational documents) of such Selling Shareholder, if the Selling Shareholder is other than a natural person, or (iii) any contract, agreement, obligation, covenant or instrument to which such Selling Shareholder (or any of her, his or its assets) is subject or bound, except, in the case of this clause (iii), for such conflicts, breaches, violations, impositions or defaults that would not reasonably be expected to impair in any material respect the consummation of such Selling Shareholder’s obligations under this Agreement, the Custody Agreement or the Power of Attorney; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of her, his or its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as (i) may be required by the securities or Blue Sky “blue sky” laws of the various states jurisdictions in connection with the offer and sale of the Shares.
Shares and (cii) may have previously been made or obtained. Such attorneys-in-fact have been authorized pursuant to the Power of Attorney to execute and deliver this Agreement on behalf of such Selling Shareholder hasShareholder, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 Custodian has been authorized to receive and acknowledge receipt of the New York Uniform Commercial Code in respect of, proceeds of sale of the Shares to be sold by such Selling Shareholder against delivery thereof and otherwise act on behalf of such Selling Shareholder.
(c) All of the Shares to be sold by such Selling Shareholder pursuant to this Agreement are held of record by such Selling Shareholder and are represented by certificated securities in registered form of Common Stock. Such Selling Shareholder is the beneficial owner of the number of shares of Common Stock disclosed under “Principal and Selling Shareholders” in the Time of Sale Prospectus and to be disclosed under that caption in the Prospectus as being shares of capital stock of the Company owned beneficially by such Selling Shareholder immediately prior to the Offering. Such Selling Shareholder will have on the Closing Date and on each Option Closing Date, if any, valid and marketable title to the number of Shares to be sold by such Selling Shareholder under this Agreement, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances, except as provided in subsection (e) of this Section. Such Selling Shareholder has on the date hereof, and will have on the Closing Date and on each Option Closing Date, if any, the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Sharesunder this Agreement.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are the legal, valid and binding agreements of such Selling Shareholder. A copy of each of the Custody Agreement and Power of Attorney has been delivered to ▇▇▇▇▇.
(e) Not later than the close of business on the day after the date of this Agreement, such Selling Shareholder will deposit in custody with the Custodian, under the Custody Agreement, certificates in negotiable form evidencing such Selling Shareholder’s shares of Common Stock to be sold as Shares by such Selling Stockholder pursuant to this Agreement. Such Shares to be sold by such Selling Stockholder are subject to the interests of the Company, the Underwriters and the other Selling Shareholders; the arrangements made for such custody, and the appointment of the Agent pursuant to the Power of Attorney, are to that extent irrevocable; and the obligations of such Selling Shareholder hereunder and under the Power of Attorney and the Custody Agreement shall not be terminated except as provided in this Agreement, the Power of Attorney or the Custody Agreement by any act of such Selling Shareholder, by operation of law, whether, in the case of an individual Selling Shareholder, by the death or incapacity of such Selling Shareholder, or, in the case of a trust or an estate, by the death of the trustee or trustees or the executor or executors or the termination of such trust or estate, or, in the case of a partnership, corporation or limited liability company, by the dissolution, winding-up or other event affecting the legal life of such entity, or by the occurrence of any other event. If such Selling Shareholder is an individual and if such Selling Shareholder should die or become incapacitated, or if any such trustee or executor should die or become incapacitated, or if any such trust, estate, partnership, corporation or limited liability company should be terminated, or if any other event should occur before the delivery of such Selling Shareholder’s Shares hereunder, then the documents evidencing such Selling Shareholder’s Shares then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity, termination or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(f) 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 The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim claim” (within the meaning of Section 8-105 102 of the New York Uniform Commercial Code in effect in the State of New York (the “UCC”))) to such Shares), (Ai) DTC shall be a “protected purchaser” of such Shares (within the meaning of Section 8-303 of the UCC), (Bii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares Shares, and (Ciii) no action based on any “adverse claim”, ” (within the meaning of Section 8-102 of the UCC, ) to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, warranty and agreement, such Selling Shareholder may assume that that, when such payment, delivery and crediting occur, (xw) such the Selling Shareholders’ Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporationcharter, bylaws and applicable law, (yx) DTC will be registered as a “clearing corporation” (within the meaning of Section 8-102 of the UCC UCC), and (zy) appropriate entries to the accounts of each of the several Underwriters on the records of DTC will have been made pursuant to the UCCUCC and (z) DTC’s jurisdiction for purposes of Section 8-110 of the UCC is the State of New York.
(fg) Such Selling Shareholder has not, before the execution of this Agreement, offered or sold any Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the then most recent Preliminary Prospectus.
(h) If such Selling Shareholder is not prompted by a beneficial owner of 5% or more of the outstanding common stock or of any information concerning other unregistered equity securities of the Company or any of its subsidiaries which is acquired at any time on or after the 180th day immediately preceding the date that the Registration Statement was initially filed with the Commission, then such Selling Shareholder does not set forth in have any association or affiliation with a member of FINRA.
(i) Such Selling Shareholder has not, directly or indirectly, taken any action that will constitute, or has constituted, or designed to cause or result in, or that might reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) Such Selling Shareholder has reviewed the Registration Statement and the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each documentand, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in knowledge of such Selling Shareholder, neither the Registration Statement, when it became effective under the Securities Act, nor the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as then amended or supplemented, if applicable, at the Closing Date, contained or will not contain contain, respectively, any untrue statement of a material fact or omit to state a material fact required to be stated therein omitted or necessary to make the statements therein not misleadingwill omit, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingrespectively, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, . Such Selling Shareholder confirms the accuracy of the information concerning the undersigned (vi) each broadly available road show, if any, when considered together contained in the Selling Shareholder’s questionnaire furnished by the undersigned to the Company for purposes of filings with FINRA and (ii) as set forth in the Registration Statement and the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make Prospectus under the statements therein, in the light of the circumstances under which they were made, not misleading caption “Principal and Selling Shareholders.”
(vik) the Prospectus does not contain and, Except as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions disclosed in the Registration Statement, Statement and the Time of Sale Prospectus, Prospectus and as will be disclosed in the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished does not have any contractual or other rights to have any securities registered for sale by the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that under the only such information is that described as such in Section 11(b) hereofSecurities Act.
(hl) Such Selling Shareholder is has not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan prepared or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101had prepared on its behalf, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries used or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledgereferred to, any employee, agent or representative of such Selling Shareholder or of free writing prospectus and has not distributed any of its subsidiaries or non-controlled affiliates, has taken or will take any action written materials in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance connection with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinOffering.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each The Selling Shareholder Shareholders each hereby represents and warrants to and agrees covenants with each of Pubco (which representations, warranties and covenants shall survive the Underwriters Closing) that:
(a) This Agreement the Selling Shareholder is not a U.S. Person (as defined herein);
(b) the Selling Shareholder is not acquiring the Exchange Shares for the account or benefit of, directly or indirectly, any U.S. Person (as defined herein);
(c) the Selling Shareholder:
(i) is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Selling Shareholder is resident (the “International Jurisdiction”) which would apply to the acquisition of the Exchange Shares,
(ii) is purchasing the Exchange Shares pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Selling Shareholder is permitted to purchase the Exchange Shares under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require Pubco to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Exchange Shares, and
(iv) represents and warrants that the acquisition of the Exchange Shares by the Selling Shareholder does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of Pubco in the International Jurisdiction, and
C. the Selling Shareholder will, if requested by Pubco, deliver to Pubco a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of Pubco, acting reasonably;
(d) the Selling Shareholder is acquiring the Exchange Shares as principal for investment only and not with a view to, or for, resale, distribution or fractionalization thereof, in whole or in part, and, in particular, it has no intention to distribute either directly or indirectly any of the Exchange Shares in the United States or to U.S. Persons (as defined herein);
(e) the Selling Shareholder is outside the United States when receiving and executing this Agreement;
(f) the Selling Shareholder understands and agrees not to engage in any hedging transactions involving any of the Exchange Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(g) the Selling Shareholder acknowledges that it has not acquired the Exchange Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Exchange Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Exchange Shares; provided, however, that the Selling Shareholder may sell or otherwise dispose of any of the Exchange Shares pursuant to registration of any of the Exchange Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(h) the Selling Shareholder has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Selling Shareholder is a corporation, it is duly authorizedincorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Agreement on behalf of the Selling Shareholder;
(i) the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or, if applicable, the constating documents of, the Selling Shareholder, or of any agreement, written or oral, to which the Selling Shareholder may be a party or by which the Selling Shareholder is or may be bound;
(j) the Selling Shareholder has duly executed and delivered by or on behalf of such Selling Shareholder this Agreement and is the it constitutes a valid and binding agreement of such the Selling Shareholder enforceable against the Selling Shareholder.;
(bk) The execution and delivery by such the Selling Shareholder ofhas received and carefully read this Agreement;
(l) the Selling Shareholder (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Exchange Shares for an indefinite period of time, and can afford the complete loss of such investment;
(m) the Selling Shareholder has the requisite knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Exchange Shares and Pubco, and the performance by such Selling Shareholder is providing evidence of knowledge and experience in these matters through the information requested herein;
(n) the Selling Shareholder understands and agrees that Pubco and others will rely upon the truth and accuracy of the acknowledgements, representations, warranties, covenants and agreements contained in this Agreement, and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Selling Shareholder shall promptly notify Pubco;
(o) the Selling Shareholder is aware that an investment in Pubco is speculative and involves certain risks, including the possible loss of the investment;
(p) the Selling Shareholder is purchasing the Exchange Shares for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a direct or indirect beneficial interest is such Exchange Shares, and the Selling Shareholder has not subdivided his interest in the Exchange Shares with any other person;
(q) the Selling Shareholder is not an underwriter of, or dealer in, the shares of Pubco's common stock, nor is the Selling Shareholder participating, pursuant to a contractual agreement or otherwise, in the distribution of the Exchange Shares;
(r) the Selling Shareholder has made an independent examination and investigation of an investment in the Exchange Shares and Pubco and has depended on the advice of its obligations underlegal and financial advisors and agrees that Pubco will not be responsible in anyway whatsoever for the Selling Shareholder's decision to invest in the Exchange Shares and Pubco;
(s) if the Selling Shareholder is acquiring the Exchange Shares as a fiduciary or agent for one or more investor accounts, the Selling Shareholder has sole investment discretion with respect to each such account, and the Selling Shareholder has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account;
(t) the Selling Shareholder is not aware of any advertisement of any of the Exchange Shares and is not acquiring the Exchange Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(u) no person has made to the Selling Shareholder any written or oral representations:
(i) that any person will resell or repurchase any of the Exchange Shares,
(ii) that any person will refund the purchase price of any of the Exchange Shares,
(iii) as to the future price or value of any of the Exchange Shares, or
(iv) that any of the Exchange Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Exchange Shares of Pubco on any stock exchange or automated dealer quotation system; and
(v) the Selling Shareholder acknowledges and agrees that Pubco shall not consider the Selling Shareholder’s for acceptance unless the undersigned provides to Pubco, along with an executed copy of this Agreement and such other supporting documentation that Pubco or its legal counsel may request to establish the Selling Shareholder's qualification as a qualified investor. In this Agreement, the Custody Agreement signed by such Selling Shareholder term "U.S. Person" shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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 purpose of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to Agreement includes any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling ShareholderUnited States.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to to, and agrees with with, each of the several Underwriters and the Company that:
(ai) This Such Selling Shareholder has full right, power and authority to enter into this Agreement, the Power of Attorney and the Custody Agreement has (as hereinafter defined) and to sell, assign, transfer and deliver to the Underwriters the Shares to be sold by such Selling Shareholder hereunder; and the execution and delivery of this Agreement, the Power of Attorney and the Custody Agreement have been duly authorized, authorized by all necessary action of such Selling Shareholder.
(ii) Such Selling Shareholder has duly executed and delivered by or on behalf this Agreement, the Power of such Selling Shareholder Attorney and is the Custody Agreement, and each constitutes the valid and binding agreement of such Selling ShareholderShareholder enforceable against such Selling Shareholder in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or affecting the enforcement of creditors' rights generally and to general equitable principles and, with respect to this Agreement, except as the enforceability of rights to indemnity and contribution under this Agreement may be limited under applicable securities laws or the public policy underlying such laws.
(biii) The execution and delivery by such Selling Shareholder ofNo consent, and approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body is required for the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit sale of the Shares to be sold by such Selling Shareholder (or the “Custody consummation of the transactions contemplated by this Agreement”) and , the Power of Attorney appointing certain individuals as or the Custody Agreement, except the registration of such Selling Shareholder’s attorneys-in-fact to Shares under the extent set forth thereinAct (which, relating to the transactions contemplated hereby and by if the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person)effective as of the time of execution hereof, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under shall be obtained as provided in this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except ) and such as may be required by the under state securities or Blue Sky blue sky laws or the bylaws and rules and regulations of the various states NASD in connection with the offer offer, sale and sale distribution of such Shares by the SharesUnderwriters.
(civ) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning The sale of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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 performance of this Agreement, the Power of Attorney and the Custody Agreement and the Power consummation of Attorney the transactions herein and therein contemplated will not conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease, or other material agreement or instrument to sellwhich such Selling Shareholder is a party or to which any of his respective properties or assets is subject, transfer nor will such action conflict with or violate any provisions of any statute, rule or regulation or any order, judgment or decree of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of such Selling Shareholder's properties or assets, except those, in each such case, which would not have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated by this Agreement.
(v) Such Selling Shareholder has, or immediately prior to the First Time of Delivery (as hereinafter defined), such Selling Shareholder will have, good and deliver valid title to the Shares to be sold by such Selling Shareholder hereunder, without notice of any adverse claim, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or a security entitlement in respect claims of any nature whatsoever; and, upon delivery of such Shares against payment therefor as provided herein (assuming that such Shares are purchased in good faith without notice of adverse claim) good and valid title to such Shares, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever, will pass to the several Underwriters.
(dvi) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Such Selling Shareholder has not (A) taken, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (B) since the filing of the Registration Statement (1) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (2) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company. In order to document the Underwriters' compliance with the reporting and are valid withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to the Representatives prior to or at the First Time of Delivery a properly completed and binding agreements executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Each of such the Selling Shareholder.
(e) Upon payment for Shareholders represents and warrants that certificates in negotiable form representing all of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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 hereunder have been registered placed in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, custody (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinor, in the light case of the circumstances contemplated exercise of stock options, a duly executed notice of exercise of stock options to purchase the Shares to be sold by the Selling Shareholders hereunder has been placed in custody) under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereincustody agreement, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder form heretofore furnished to and approved by you (the Company in writing "Custody Agreement"), duly executed and delivered by such Selling Shareholder expressly for use thereinto Wachovia Bank of North Carolina, it being understood N.A., as custodian (the "Custodian"), and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any has duly executed and delivered a Power of its subsidiaries or controlled affiliatesAttorney, nor any of their directors or officersin the form heretofore furnished to and approved by you, nor, to appointing the persons indicated in Schedule II hereto as such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non's attorney-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise in-fact (the "Attorneys- in-Fact") with authority to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or execute and deliver this Agreement on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such to determine the purchase price to be paid by the Underwriters to the Selling Shareholders as provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder and its subsidiaries and affiliates have instituted and maintained and will continue otherwise to maintain policies and procedures reasonably designed to promote and achieve compliance act on behalf of such Selling Shareholder in connection with the Anti-Corruption Laws, transactions contemplated by this Agreement and the Anti-Money Laundering Laws, SanctionsCustody Agreement. Each of the Selling Shareholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and with that the representations arrangements made by such Selling Shareholder for such custody, and warranties contained hereinthe appointment by such Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney, are irrevocable. Each of the Selling Shareholders specifically agrees that the obligations of the Selling Shareholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Shareholder, or by the occurrence of any other event.
Appears in 1 contract
Sources: Underwriting Agreement (Goodys Family Clothing Inc /Tn)
Representations and Warranties of the Selling Shareholders. Each Except as otherwise provided below, each Selling Shareholder listed in Schedule II, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, Agreement and the Custody Agreement signed by such Selling Shareholder and Computershare Trust the Company, N.A., as Custodian, relating to the deposit of the Shares 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 (each, an “Attorney-in-Fact”) to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene (i) conflict with or result in a breach or violation of any provision of applicable lawthe terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the certificate of incorporation, by-laws property or similar constitutional document assets of such Selling Shareholder is subject or (if such Selling Shareholder is not a natural person), ii) result in any violation of any statute or any agreement order, rule or other instrument binding upon such Selling Shareholder or any judgment, order or decree regulation of any court or governmental body, agency or court body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder, and no .
(c) No consent, approval, authorization or order of, or qualification filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or agency the property or assets of such Selling Shareholder is required for the execution, delivery and performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney of by such Selling ShareholderShareholder or the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(cd) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(de) The Custody Agreement and the Power of Attorney have been duly authorized, authorized by such Selling Shareholder and when executed and delivered by such Selling Shareholder and Shareholder, are valid and binding agreements of such Selling Shareholder, enforceable in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(ef) 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 Depositary Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (Ai) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (Ciii) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fg) [Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a Material Adverse Effect, provided that the representations and warranties in this Section 2(g) are made and given only by ▇▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇ ▇▇▇.]
(h) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries Subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(gi) [(i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iviii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; , provided that the representations and warranties set forth in this Section 2(g2(i) are limited do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus, Prospectus or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein and provided further that, with respect to ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ only, the representations and warranties set forth in this Section 2(i) apply only to the extent that any such statements in or omissions from any Registration Statement, the Time of Sale Prospectus, the Prospectus or any broadly available road show are made in reliance on and in conformity with written information relating to such Selling Shareholder that has been furnished to the Company by or on behalf of such Selling Shareholder specifically and expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.]
(hj) Such Selling Shareholder is does not (1) an employee benefit plan subject have any registration or other similar rights to Title I of ERISA, (2) a plan have any equity or account subject to Section 4975 debt securities registered for sale by the Company under the Registration Statement or included in the offering of the Code Shares, except for such rights as have been waived or (3) an entity deemed to hold “plan assets” which are described in the Registration Statement, Time of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseSale Prospectus and Prospectus.
(ik) Neither Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Shareholder to the Underwriters pursuant to this Agreement; and such Selling Shareholder nor does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company, other than those described in the Registration Statement, the Time of its subsidiaries Sale Prospectus and the Prospectus.
(l) There are no contracts, agreements or controlled affiliatesunderstandings between such Selling Shareholder and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, nor finder’s fee or other like payment in connection with this offering.
(m) There are no affiliations or associations between any member of their directors or officers, nor, to FINRA and such Selling Shareholder’s knowledge, any employeeexcept as disclosed in the Registration Statement, agent Time of Sale Prospectus and Prospectus or representative of as set forth in a questionnaire completed by such Selling Shareholder or and delivered to the Representatives prior to the date of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval this Agreement; none of the paymentproceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder pursuant to this Agreement will be paid to a member of FINRA or any affiliate of (or person “associated with”, giving as such terms are used in the Rules of FINRA) such member.
(n) Such Selling Shareholder represents that it has not prepared or receipt had prepared on its behalf or used or referred to any free writing prospectus and represents that it has not distributed any written materials in connection with the offer or sale of money, property, gifts or anything else of valuethe Shares.
(o) Such Selling Shareholder has not taken, directly or indirectly, any action designed to any government official (including any officer cause or employee of a government or government-owned or controlled entity or of a public international organizationresult in, or any person acting in an official capacity for that has constituted or on behalf might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the foregoingCompany.
(p) Such Selling Shareholder:
(i) represents that neither it nor, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate knowledge of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any director, officer, employee, agent, affiliate or representativerepresentative of such Selling Shareholder, is a Person that is, or is owned or controlled by one or more Persons a Person that areis:
(A) the subject of any sanctions administered or enforced by the Sanctions, ornor
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, CrimeaBurma/Myanmar, Cuba, Iran, North Korea Korea, Sudan and Syria).;
(ii) represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise); and
(iii) For represents and covenants that for the past five 5 years, such Selling Shareholder and each of its subsidiaries have it has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions . Any certificate signed by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses delivered to the Representative or counsel for the Underwriters in compliance connection with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Shares shall be deemed a representation and Sanctions, and no investigation, inquiry, action, suit or proceeding warranty by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue as to maintain policies and procedures reasonably designed matters covered thereby, to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereineach Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (RDA Microelectronics, Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, under this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation, by-laws or similar constitutional laws, certificate of formation, limited liability company agreement, certificate of limited partnership, limited partnership agreement and/or other organizational document of such Selling Shareholder (if such Selling Shareholder is not a natural personas, and if, applicable), or (iii) any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the cases of clause (i) and (iii) for such contraventions that would not have a material adverse effect on the ability of such Selling Stockholder to consummate the transactions contemplated hereby, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except (A) such as may be required by the Securities Act, the Exchange Act and the securities or Blue Sky laws of the various states and (B) such others as have been obtained in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date Date, and any Option Closing Date, will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and Upon (i) the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, (ii) delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), (iii) registration of such Shares in the name of DTC, Cede or such other nominee nominee, and the crediting DTC or another person on behalf of DTC maintaining possession of certificates representing such Shares and (iv) DTC indicating by book entries on its books that security entitlements with respect to such Shares have been credited to the books of DTC to Underwriter’s securities accounts of account, the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim will acquire a security entitlement (within the meaning of under Section 8-105 501 of the New York Uniform Commercial Code (the “New York UCC”))), (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 with respect of to such Shares and (C) no action based on any an “adverse claim”, within the meaning of ” (as defined in Section 8-102 of the New York UCC, to such Shares ) may be asserted against the Underwriters with respect to (assuming that (A) the Underwriters are purchasing such security entitlement; for purposes Shares without notice of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occurany adverse claim, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (yB) DTC will be registered as is a “clearing corporationsecurities intermediary” within the meaning of as defined in Section 8-102 of the New York UCC and (zC) appropriate entries to the accounts State of New York is the “security intermediary jurisdiction” of DTC for purposes of Section 8-110 of the several Underwriters on the records of DTC will have been made pursuant to the New York UCC).
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingApplicable Time, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is did not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (viii) each broadly available road show, if any, when considered together with the Time as of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light its date and as of the circumstances under which they were madeClosing Date, not misleading and (vi) any Option Closing Date, the Prospectus does not contain and, as amended or supplemented, if applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(e) are limited to statements or omissions in the Registration Statement, Time collective reference to the name of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished (including the related footnotes), the number of shares of Class A Common Stock beneficially owned by such Selling Stockholder before and after the offering, the number of shares of Class A Common Stock to the Company in writing be offered by such Selling Shareholder expressly for use therein, it being understood as set forth under “Principal and agreed that Selling Stockholders” in the only such Prospectus and the information is that described as such in Section 11(b) hereof.
the third paragraph under the caption “Prospectus Summary—Our Principal Equityholders” in the Time of Sale Prospectus and the Prospectus (h) Such the “Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government OfficialInformation”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Emdeon Inc.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally and not jointly represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust the Company, N.A., as Custodian, relating to the deposit of the Shares 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”) ), will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation, by-laws or similar constitutional document other constitutive or organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural personlegal entity), or (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the case of clauses (i) and (iii) for such contravention that would not have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated hereby, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except (A) such as may be required by the Securities Act, the Exchange Act and the securities or Blue Sky laws of the various states and (B) such others as have been obtained in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder hashas (or, upon the exercise of vested stock options into Ordinary Shares, will have on or prior to the Closing Date), and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are constitute valid and legally binding agreements obligations of each such Selling ShareholderShareholder enforceable in accordance with their terms, subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and (ii) enforceability of any indemnification or contribution provision that may be limited under the federal and state securities laws.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (w) the Underwriters are purchasing such Shares without notice of any adverse claim, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws 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.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partcontain, and, as amended or supplemented, if applicable, will not contain contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iviii) as of the Applicable Time, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is did not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viv) the Prospectus Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, as of the Closing Date, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section paragraph 2(g) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I Time of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledgeSale Prospectus, any employeebroadly available road show, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, Prospectus or any person acting in an official capacity for amendments or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholdersupplements thereto.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to to, severally and not jointly, and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.____________, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”"CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as such Selling Shareholder’s '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”"POWER OF ATTORNEY") will not contravene any provision of applicable law, or the certificate of incorporationtrust agreement, by-laws or similar constitutional document as amended, of such Selling Shareholder (if such Selling Shareholder is not a natural person)Shareholder, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney of such Selling Shareholder, except such as may be required by the Securities Act or the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder pursuant to this AgreementAgreement will pass title to such Shares free and clear of any security interests, delivery claims, liens, equities and other encumbrances.
(f) Upon transfer (as defined below) of such Sharesthe Shares to The Depository Trust Company, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company will acquire the Shares free of all adverse claims (“DTC”within the meaning of Sections 8- 102(a)(1) and 8-303 of the Uniform Commercial Code as in effect in New York or Illinois, as applicable (the "UCC"), registration ). "TRANSFER" of such the Shares in to The Depository Trust Company will occur upon the name making by the Company's transfer agent of Cede or such other nominee and appropriate entries transferring the crediting of such Shares on the its books of DTC and records to securities accounts The Depository Trust Company. Each of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim shall acquire a "securities entitlement" (within the meaning of Section 8-105 102(a)(17) of the New York Uniform Commercial Code UCC) in the Shares to be purchased by it, free of all adverse claims created by, through or with respect to the Selling Shareholder, upon the making by The Depository Trust Company of a book entry that shares of the Company's stock in the amounts set forth opposite each Underwriter's name on Schedule I hereto have been credited to such Underwriter's security account (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 8- 501(a) 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 The Depository Trust Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare CIBC Mellon Trust Company, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”"CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as such Selling Shareholder’s '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”"POWER OF ATTORNEY") will not contravene any provision of applicable law, or the certificate articles of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any foreign or domestic governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency (including without limitation any Canadian court or Canadian federal or provincial governmental authority) is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such (i) as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, and (ii) for the filing of the Canadian Supplemental Prospectus.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for [Delivery of the Shares to be sold by such Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may without notice of an adverse claim. [NOTE: This version of the representation is to be asserted against used if Shares are to be delivered by the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries certificated form endorsed to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCUnderwriters.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.]
Appears in 1 contract
Sources: Underwriting Agreement (Corel Corp)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Power of Attorney and Custody Agreement signed by such Selling Shareholder and Computershare Trust CompanyAgreement, N.A., as Custodianin the form heretofore furnished to the Representatives, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Selling Shareholder’s '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”Attorney and Custody Agreement") do not and will not (i) contravene any provision of applicable law, or the certificate of incorporation, or certificate of formation or by-laws or similar constitutional document operating agreement or other constitutive documents of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation or other entity), or (ii) conflict with or constitute a breach of, or default under, 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, or result in the creation or imposition of any tax (other instrument binding than New York State Stock Transfer Tax), lien, charge or encumbrance upon the Shares to be sold by such Selling Shareholder or (iii) contravene any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, ; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney and Custody Agreement of such Selling Shareholder, except such as have been already obtained or as may be required by the Exchange Act, the securities laws or Blue Sky laws of the various states jurisdictions and any consent or approval required by the NASD in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and Custody Agreement and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney and Custody Agreement have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, except as rights to indemnification thereunder may be limited by applicable law and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(e) The Shares 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 (the "UCC"). Certificates for all of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with Herbalife Ltd. (the "Custodian") with irrevocable conditional instructions to deliver such Shares to the Underwriters pursuant to this Agreement.
(f) Upon payment of the purchase price 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 The Depository Trust Company (“"DTC”") (unless delivery of such Shares is unnecessary because such Shares are already in possession of Cede or such nominee), registration of such Shares in the name of Cede or such other nominee (unless registration of such Shares is unnecessary because such Shares are already registered in the name of Cede or such nominee), and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any "adverse claim (claim", within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “"UCC”")), to such Shares), (A) DTC shall be a “"protected purchaser” of such Shares ", within the meaning of Section 8-303 of the UCC, of such Shares and will acquire its interest in the Shares (including, without limitation, all rights that such Selling Shareholder had or has the power to transfer in such Shares) free and clear of any adverse claim within the meaning of Section 8-102 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 (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “"adverse claim”", within the meaning of Section 8-102 of the UCC, to such Shares 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 Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s 's share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “"clearing corporation” ", within the meaning of Section 8-102 of the UCC 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.
(fg) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not materially true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Registration Statement and the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendment, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section paragraph 2(g) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for the use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan Prospectus or account subject to Section 4975 of the Code any amendments or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwisesupplements thereto.
(i) Neither Such Selling Shareholder has 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 price of any security of the Company to facilitate the sale or resale of the Shares.
(j) Except as previously disclosed to the Representatives, neither such Selling Shareholder nor any of its subsidiaries affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled affiliatesby, nor any or is under common control with, or is a person associated with (within the meaning of their directors or officers, nor, to such Selling Shareholder’s knowledgeArticle I(dd) of the By-laws of the NASD), any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval member firm of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for NASD. Any certificate signed by or on behalf of any of a Selling Shareholder as such and delivered to the foregoing, Representatives or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official counsel for the benefit Underwriters pursuant to the terms of this Agreement shall be deemed a representation and warranty by such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether Underwriters as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinmatters covered thereby.
Appears in 1 contract
Sources: Purchase Agreement (Herbalife Ltd.)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust CompanyMellon Investor Services, N.A.LLC, as Custodian, relating to the deposit of the Shares 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-attorneys in fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document limited partnership agreement of such Selling Shareholder (if such Selling Shareholder is not a natural personlimited partnership), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon With respect to any Shares delivered by such Selling Shareholder in certificated form endorsed to the Underwriters, delivery of the Shares to be sold by such Selling Shareholder and payment therefor pursuant to this Agreement will pass valid title to such Shares, free and clear of any adverse claim within the meaning of Section 8-102 of the New York Uniform Commercial Code, to each Underwriter who has purchased such Shares without notice of an adverse claim.
(f) With respect to any Shares delivered by such Selling Shareholder through DTC, upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fg) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section 2(g) paragraph are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I Time of ERISASale Prospectus, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organizationProspectus, or any person acting in an official capacity for amendments or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholdersupplements thereto.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (NightHawk Radiology Holdings Inc)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.The Bank of New York, as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document other organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural personan entity), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, have valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCan adverse claim.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I Time of ERISASale Prospectus, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, Prospectus or any person acting in an official capacity for amendments or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholdersupplements thereto.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders, severally and not jointly with the other Selling Shareholders as to itself only, represents and warrants to to, and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The Assuming the accuracy of the Company's representations in paragraphs (a) and (b) of Article I, the execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust CompanyNorwest Bank, Minnesota, N.A., as custodian (the "Custodian"), relating to the deposit of the Shares to be sold by such Selling Shareholder (the “"Custody Agreement”") and the Power of Attorney appointing certain individuals as such Selling Shareholder’s 's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “"Power of Attorney”") will not contravene any provision of applicable law (other than any state securities law or Blue Sky law or any foreign law), or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) Such On the date hereof, such Selling Shareholder has, and on the Closing Date will have, has valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by such Selling Shareholder; on the Closing Date, such Selling Shareholder free and clear of all security interestswill have valid title to the Shares to be sold by such Selling Shareholder; and, claimson the date hereof, liens, equities or other encumbrances and such Selling Shareholder has the legal right and power, and, assuming the accuracy of the Company's representations in paragraphs (a) and (b) of Article I, all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The If the Selling Shareholder has executed and delivered a Custody Agreement, such Custody Agreement and the Power of Attorney have has been duly authorized, executed and delivered by such Selling Shareholder and are is a valid and binding agreements agreement of such Selling Shareholder.
(e) Upon delivery of, and payment for for, the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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, title 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 free and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” clear of any such plan or account under Section 3(42) of ERISAsecurity interests, 29 C.F.R.2510.3-101claims, or otherwiseliens, equities and other encumbrances.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as and Custody Agreement of 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”) Shareholder will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document organizational documents of such Selling Shareholder (if such Selling Shareholder is not a natural person)Shareholder, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney and Custody Agreement of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Shares 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 NYUCC. Such Selling Shareholder has and will on the Closing Date have full right, power and authority to hold, sell, transfer and deliver the Shares to be sold by such Selling Shareholder pursuant to this Agreement; and upon delivery to the Underwriters of such Shares and payment of the purchase price therefor as herein contemplated, the Underwriters will acquire their respective interests in such Shares (including, without limitation, all rights that such Selling Shareholder had or has the power to transfer in such Shares) free of any adverse claim.
(d) Certificates for all of the Shares to be sold by such Selling Shareholder pursuant to this Agreement in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank or to the Underwriters, with signatures guaranteed, have been placed in custody with the Custodian (as defined under the Power of Attorney and Custody Agreement) with irrevocable conditional instructions to deliver such Shares to the Underwriters pursuant to this Agreement.
(e) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer Custody Agreement of such Selling Shareholder.
(f) The Power of Attorney and deliver the Shares to be sold by Custody Agreement of such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have has been duly authorized, executed and delivered by such Selling Shareholder and are is a valid and binding agreements agreement of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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 enforceable in accordance with its certificate terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and general principles of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCequity.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectuscomply and, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a comply in all material fact or omit to state a material fact necessary to make respects with the statements therein, in Securities Act and the light applicable rules and regulations of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading Commission thereunder and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section paragraph 2(g) are limited (x) do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein and (y) relate only to information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use therein, it being understood and agreed that in the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledgeRegistration Statement, any employeepreliminary prospectus, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, Prospectus or any person acting in an official capacity for amendments or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholdersupplements thereto.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each warrants, as of the Underwriters date hereof and as of the Closing Date, to the Company and the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws incorporation or similar constitutional document by‑laws of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 8‑501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances. Such Selling Shareholder has, and on the Closing Date will have, the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares, except such as have been obtained and are in full force and effect at or prior to the Closing Date or as may be required under the Securities Act, applicable state securities or Blue Sky laws, the NASDAQ Global Market and from FINRA.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder[Reserved].
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 8‑105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 8‑303 of the UCC, (B) under Section 8-501 8‑501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 8‑102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occuroccurs, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 8‑102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries Subsidiaries which is not set forth in the Time of Sale Registration Statement, the Preliminary Prospectus or the Final Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each documentAs of the effective date of the Registration Statement and any amendments thereto, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus Registration Statement complied or will comply when so filed in all material respects with the Exchange Securities Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of and the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Final Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Final Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided provided, however, that the such representations and warranties set forth in this Section 2(g) are limited apply only to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by such the Selling Shareholder Shareholders expressly for use thereinin the Registration Statement, the Time of Sale Prospectus or the Final Prospectus, it being understood and agreed that the only such information is furnished by the Selling Shareholders consists only of (A) the legal name and address of the Selling Shareholders set forth under the caption “Selling Stockholders” and (B) the number of Shares owned by the Selling Shareholders before and after the offering (excluding percentages) that described as such appears in Section 11(bthe table (and corresponding footnotes) hereof.
under the caption “Selling Stockholders” (h) Such collectively, the “Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseInformation”).
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, Cuba, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba14065 and non-government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For Since the past five yearsmore recent of April 24, 2019 or 10 years prior to the date of the Agreement, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(ja) Such None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds to any Government Official in order to influence official action, or to any person in violation of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business U.S. Foreign Corrupt Practices Act of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is1977, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in UK Bribery Act 2010, and any other manner that would cause applicable law, regulation, order, decree or result in a violation directive having the force of any Anti-Corruption Laws, Anti-Money Laundering Laws, law and relating to bribery or Sanctions by any Person corruption; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and each of its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such Selling Shareholder, threatened. .
(i) Such Selling Shareholder represents and its subsidiaries and affiliates have instituted and maintained and will continue warrants that it is not (i) an employee benefit plan subject to maintain policies and procedures reasonably Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) The Selling Shareholder has not taken, directly or indirectly, any action designed to promote and achieve compliance with or that could reasonably be expected to cause or result in any stabilization or manipulation of the Anti-Corruption Laws, price of the Anti-Money Laundering Laws, Sanctions, and with Shares in violation of Regulation M under the representations and warranties contained hereinExchange Act.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document other comparable documents of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation or other entity), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the conduct rules of the NASD and by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code (the "UCC") in respect of, the Shares (or, in the case of any such Shares underlying options, such options are, and on the Closing Date will be, presently exercisable and such Selling Shareholder is the record and beneficial owner of such options and, upon the exercise of such options on the Closing Date, will be the record and beneficial owner of such underlying Shares) 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”"CEDE") or such other nominee as may be designated by the Depository Trust Company (“"DTC”"), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “"protected purchaser” " of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “"adverse claim”", within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s 's share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “"clearing corporation” " within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) Such Selling Shareholder (other than Rustic Canyon Ventures LP, SOFTBANK Capital Partners LP, SOFTBANK Capital LP and SOFTBANK Capital Advisors Fund LP) has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Prospectus that has had, or is reasonably likely to have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder (other than Rustic Canyon Ventures LP, SOFTBANK Capital Partners LP, SOFTBANK Capital LP and SOFTBANK Capital Advisors Fund LP) is not prompted by any information known to it concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(gparagraph 2(f) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither provided by such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval consists of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge name of such Selling Shareholder, threatened. Such the number of offered Shares and the other information with respect to such Selling Shareholder (excluding percentages) which appear in the tables under "Principal Stockholders" and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with "Selling Stockholders" in the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinProspectus.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare American Stock Transfer & Trust Company, N.A.LLC, as Custodian, relating to the deposit of the Shares 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 attorneys‑in‑fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws incorporation or similar constitutional document by‑laws of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 8‑501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by 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 8‑105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 8‑303 of the UCC, (B) under Section 8-501 8‑501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 8‑102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 8‑102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 2 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iviii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section paragraph 2(g) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I Time of ERISASale Prospectus, (2) a plan the Prospectus or account subject to Section 4975 of the Code any amendments or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwisesupplements thereto.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five 5 years, such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(jiv) Such (a) None of such Selling Shareholder or its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds of the offeringto any Government Official in order to influence official action, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or person in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Antiapplicable anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person corruption laws; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such the Selling Shareholder, threatened. .
(i) Such Selling Shareholder represents and its subsidiaries and affiliates have instituted and maintained and will continue warrants that it is not (i) an employee benefit plan subject to maintain policies and procedures reasonably designed Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to promote and achieve compliance with Section 4975 of the AntiInternal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-Corruption Laws101, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinor otherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, under this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document estate planning instruments, or other governing documents, as applicable and if any, of such Selling Shareholder (if such Selling Shareholder is not a natural person)Shareholder, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares or as required pursuant to the rules of the NASD.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are valid validly issued, fully paid and binding agreements of such Selling Shareholdernon-assessable.
(e) Upon payment for Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(f) Such Selling Shareholder is Stockholder has not prompted by taken and will not take, directly or indirectly, any information concerning action designed to or which might be reasonably expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or its subsidiaries which is not resale of the Shares.
(g) Each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇ severally represents and warrants to, and agrees with, the Company and the Underwriters to the same effect as the representations and warranties of the Company set forth in the Time Section 1 of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in In order to improperly influence official action by that Government Official for document the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in Underwriters' compliance with the Anti-Corruption Lawsreporting and withholding requirements of the Internal Revenue Code of 1986, the Anti-Money Laundering Lawsas amended, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Lawstransactions herein contemplated, each of the Anti-Money Laundering Laws Selling Shareholders agrees to deliver to you prior to or Sanctions is pending oron the Closing Date, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder a properly completed and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereinexecuted United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders represents and warrants to and agrees with each of the Underwriters Underwriter and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of any organizational instrument establishing such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date (as defined below) or the Option Closing Date (as defined below), if applicable, will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Custody Agreement and the Power Delivery of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, such Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(fe) Such The information which relates specifically to such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not Shareholder, as set forth under the caption "Selling Stockholders" (including the notes thereto) in the Time Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to sell its Shares pursuant to the date of this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did does not contain and each such partand, as amended or supplementedsupplemented with any information specifically furnished to the Company in writing by such Selling Shareholder expressly for use in any amendments or supplements to the Prospectus, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, .
(iiif) the Registration Statement as of the date hereof does not contain The representations and warranties made by such Selling Shareholder in any untrue statement of a material fact or omit certificate delivered to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares its counsel in connection with the offering when the Prospectus is not yet available opinions to prospective purchasers and at the Closing Date (as defined in be rendered pursuant to Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g6(d) are limited to statements or omissions true and correct in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereofall respects.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Quintiles Transnational Corp)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare American Stock Transfer & Trust Company, N.A.LLC, as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (CB) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to Neither the Exchange Act and incorporated by reference in Registration Statement nor the Time of Sale Prospectus or the Prospectus complied any amendments or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain supplements thereto includes any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit 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, ; and (vii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in clauses (i) and (ii) of this Section 2(gsubsection (f) are limited apply only 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 Time of Sale Prospectus, the Prospectus, each broadly available road show, or any amendments other issuer free writing prospectus or supplements any amendment or supplement thereto based upon information relating to such (the “Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.Information”)
(hg) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of prompted by any information concerning the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder Company or its subsidiaries or affiliates, or which is not set forth in the Time of Sale Prospectus to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of sell its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified Shares pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria)this Agreement.
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (ii) any agreement or other instrument binding upon such Selling Shareholder or (iii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except for any contravention that would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated hereby, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required to be obtained for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of except (i) such Selling Shareholderas may have previously been obtained, except (ii) such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions or the rules and regulations of FINRA in connection with the offer and sale of the Shares, and (iii) for any such consents, approvals, authorizations, orders or qualifications, the absence of which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Selling Shareholder to perform its obligations under this Agreement.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersM▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters Underwriter (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate memorandum of incorporationassociation, bylaws bye-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 Underwriter on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part it became effective, did not contain contain, and each such part, as amended or supplemented, if applicable, will not contain contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time Registration Statement as of Sale Prospectus, the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading and (viiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; , provided that the representations and warranties set forth in this Section 2(gparagraph 2(e) are limited to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use thereinin the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto (it being understood and agreed that the only such information so included is that described as such under the heading “Selling Shareholders” in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I the Time of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management Sale Prospectus and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and SyriaProspectus).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by or on behalf of such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by or on behalf of such Selling Shareholder and Computershare Trust Company, N.A.Inc., as Custodian, relating to the deposit of the Shares 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”) will not contravene (i) any provision of applicable law, or (ii) the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling ShareholderShareholder except in the case of clauses (i), (iii) or (iv) as would not, individually or in the aggregate, have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement, the Custody Agreement and the Power of Attorney, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as have been obtained and made under the Securities Act and such as may be required under the Exchange Act or the rules and regulations thereunder, under FINRA or such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling ShareholderShareholder subject to the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) Such Selling Shareholder is not prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viiv) the Prospectus Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement and as of the Closing Date and any Option Closing Date (as defined in Section 3) will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided provided, that the representations and warranties set forth in this Section 2(g) paragraph are limited solely to statements or omissions made in reliance upon information relating to such Selling Shareholder furnished in writing to the Company or the Representatives by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only information furnished in writing by such Selling Shareholder consists of the name of such Selling Shareholder, the number of offered shares and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “Principal and Selling Shareholders” (with respect to each Selling Shareholder, the “Selling Shareholder Information”) and provided further that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus, Prospectus or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or non-affiliate thereof, is a Person that is, or is owned or otherwise controlled affiliatesby one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a Sanctioned Country.
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or a Sanctioned Country, respectively; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) Such Selling Shareholder has not in the last five years knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or a Sanctioned Country, respectively.
(iv) (a) None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) Official in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantageaction, or to any person in violation of the Antiany applicable anti-Corruption Laws. For purposes of these Sections corruption laws; (i)(ib) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possessesand each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws [and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein;1] and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the power to direct or cause the direction proceeds of the management and policies thereofoffering in furtherance of an offer, whether through the ownership of voting securitiespayment, by contract promise to pay, or otherwise. For purposes authorization of the representations payment or giving of money, or anything else of value, to any person in this Section 2, the Company and each violation of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholderany applicable anti-corruption laws.
(iv) [The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the best knowledge of such the Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.threatened.]2
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(hi) To the knowledge of such Selling Shareholder, the proceeds of the offering, will not, directly or indirectly, be used, lent, contributed or otherwise made available to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(ii) Neither the Selling Shareholder nor any of its subsidiaries will use, to its knowledge, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(i) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.Mellon Investor Services LLC, as Custodian (the “Custodian”), relating to the deposit of the Shares 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 (the “Attorneys-in-Fact”) to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) ), do not and will not (i) contravene any provision of applicable lawlaw or regulation, (ii) contravene, conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which such Selling Shareholder 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, (ii) result in any violation of the provisions of the certificate of incorporation, by-laws constitution, bylaws or similar constitutional document constitutive documents of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (iii) contravene, conflict with, or result in a breach or violation of, or constitute a default under, any agreement or other instrument binding upon such Selling Shareholder statute or any rule, regulation, judgment, order or decree of any governmental bodycourt or governmental, administrative or regulatory agency or court body or stock exchange authority having jurisdiction over such Selling Shareholder or any of its assets or properties, except where such defaults under sub-sections (i) and (ii) would not, individually or in the aggregate, impair in any material respect the consummation of such Selling Shareholder’s obligations hereunder and thereunder.
(c) No action, and no consent, approval, authorization authorization, order, certificate, license or order permit of, clearance by, or filing, registration or qualification with, any court or administrative, governmental or regulatory agency or body or agency stock exchange authority having jurisdiction over such Selling Shareholder is required for the execution, delivery and performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or the Power of Attorney of by such Selling ShareholderShareholder or the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except such (A) as have been obtained or made prior to the date of this Agreement and are in full force and effect, (B) for the registration under the Securities Act of the sale of the Shares or (C) as may be required by the securities or Blue Sky laws of the various U.S. states or under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) in connection with the offer and sale of the Shares.
(cd) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(de) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(ef) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fg) No stamp or other issuance or transfer taxes or duties and no withholding taxes are or will be payable by or on behalf of the Underwriters, or otherwise imposed on any payments made to the Underwriters, to the government of India, Mauritius or any political subdivision or taxing authority thereof in connection with (1) the execution, delivery or performance of this Agreement or (2) the sale or delivery of the Shares to be sold by such Selling Shareholder to or for the respective accounts of the Underwriters as set forth in each of the Time of Sale Prospectus and the Prospectus, and pursuant to the terms of this Agreement, except for stamp duty payable on the registration of this Agreement with the Registrar General in Mauritius.
(h) The Founders (as defined below) are Indian residents and represent and warrant that the Shares proposed to be sold by them under the terms of this Agreement were acquired by them pursuant to and in compliance with the applicable Indian Overseas Direct Investment Regulations, and that they have taken all steps required to be taken by them to ensure compliance with any reporting and other procedures required under the applicable Indian Overseas Direct Investment Regulations.
(i) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries Subsidiaries which is not set forth in the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(gj) In the case of the Selling Shareholders listed in Schedule V hereto (the “Founders”), (i) Each document, if any, filed or to be filed pursuant to of the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act Registration Statement and the applicable rules and regulations of the Commission thereunder, (ii) each part of the 8-A Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, at the Closing Date and the Option Closing Date, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) each of the Registration Statement, the 8-A Registration Statement and the Prospectus, when it became effective or as of its issue date, as applicable, and at the date hereof does not contain any untrue statement Closing Date and the Option Closing Date, complied or will comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act, the Exchange Act and the applicable rules and regulations of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, as applicable, (iviii) the Time of Sale Prospectus complies in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and does not, and at the time of each sale of the Shares in connection with the offering Offering when the Prospectus is not yet available to prospective purchasers and purchasers, at the Closing Date (as defined in Section 5)and at the Option Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (viv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and (viv) the Prospectus Prospectus, as of its issue date, at the Closing Date and at the Option Closing Date does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; , except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use therein. Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a Material Adverse Effect.
(k) In the case of the Selling Shareholders other than the Founders, (i) Each of the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, at the Closing Date and the Option Closing Date, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the Offering when the Prospectus is not yet available to prospective purchasers, at the Closing Date and at the Option Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus, as of its issue date, at the Closing Date and at the Option Closing Date does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this Section 2(gparagraph 2(k) are limited to statements or omissions in the Registration Statement, the Time of Sale Prospectus, the Prospectus, Prospectus or any amendments or supplements thereto based thereto, made in reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(hl) Such Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the Offering, except for such rights as have been waived or which are described in each of the Registration Statement, Time of Sale Prospectus and Prospectus (and which have been complied with).
(m) Such Selling Shareholder does not have any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Shareholder to the Underwriters pursuant to this Agreement, except for such rights which have been duly waived; and, except as described in each of the Time of Sale Prospectus and the Prospectus, such Selling Shareholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company.
(n) There are no contracts, agreements or understandings between such Selling Shareholder and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this Offering.
(o) Such Selling Shareholder is not (1) an employee benefit plan subject a FINRA broker-dealer. Except as disclosed in writing to Title I the Representative and its counsel, there are no affiliations or associations between any member of ERISA, (2) a plan or account subject to Section 4975 FINRA and such Selling Shareholder; none of the Code proceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder pursuant to this Agreement will be paid to a member of FINRA or any affiliate of (3or person “associated with”, as such terms are used in the Rules of FINRA) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwisemember.
(ip) Neither such Such Selling Shareholder nor represents that it has not prepared or had prepared on its behalf or used or referred to any free writing prospectus and represents that it has not distributed any written materials in connection with the offer or sale of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such the Shares.
(q) Such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of valuenot taken, directly or indirectly, any action designed to any government official (including any officer cause or employee of a government or government-owned or controlled entity or of a public international organizationresult in, or any person acting in an official capacity for that has constituted or on behalf might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the foregoing, or any political party or party official or candidate for political officeCompany.
(r) (“Government Official”i) in order to improperly influence official action by that Government Official for the benefit of such Such Selling Shareholder or its subsidiaries or affiliatesrepresents that neither it nor, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate knowledge of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any director, officer, employee, agent, affiliate or representativerepresentative of such Selling Shareholder, is a Person that is, or is owned or controlled by one or more Persons a Person that areis:
(A) the subject of any sanctions administered or enforced by the Sanctions, ornor
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, CrimeaBurma/Myanmar, Cuba, Iran, North Korea Korea, Sudan and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters U.S. Underwriter that:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the a valid and binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural person), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(cii) Such Selling Shareholder now has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization necessary consents, approvals and approval required by lawauthorizations, to enter into this Agreement, the Custody Agreement and the Power of Attorney and on the Closing Date, such Selling Shareholder will have the legal right and power, and all necessary consents, approvals and authorizations, to sell, transfer and deliver the Shares to be sold by such Selling Shareholder in the manner provided in this Agreement, such Selling Shareholder has complied with all of the provisions under the Company's Memorandum of Association and Bye-Laws in order to sell, transfer and deliver the Shares to the U.S. Underwriters in the manner provided in this Agreement, and no such action will conflict with or result in a security entitlement breach or violation of the terms and provisions of or constitute a default under any contract, indenture, mortgage, loan agreement, note, lease or other instrument or agreement to which such Selling Shareholder is a party or by which it may be bound, nor will any such action conflict with or result in respect a breach or violation of the terms and provisions of or constitute a default under (i) the charter or by-laws or other organizational documents of such Shares.
Selling Shareholder or (dii) The any statute, rule, regulation or administrative or court decree or order of any governmental agency or body or any court or arbitrator, which is applicable to such Selling Shareholder; and no consent, approval, authorization, order, filing, registration, qualification or other action of or with any court, regulatory body, arbitrator, administrative body or other governmental authority or agency is required for the execution and delivery of this Agreement, the Custody Agreement or the Power of Attorney, the sale, transfer and delivery of the Shares or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, the Custody Agreement and the Power of Attorney Attorney, except such as may be required and have been obtained under the Act, the Exchange Act or the Rules and Regulations or as may be required under state securities or Blue Sky laws (including state insurance securities laws) in connection with the purchase and distribution of the Shares by the U.S. Underwriters.
(iii) On the Closing Date, such Selling Shareholder will have, good and valid title to the Shares to be sold by such Selling Shareholder, free and clear of any security interests, adverse claims, liens, equities, preferential arrangements and other encumbrances.
(iv) Prior to the Closing Date, certificates in negotiable form for the Shares to be sold by such Selling Shareholder will have been placed in custody, for delivery pursuant to the terms of this Agreement, under the Custody Agreement, in the form heretofore furnished to you, which Custody Agreement, prior to the Closing Date, shall have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder Shareholder; the Power of Attorney in the form heretofore furnished to you has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder; and the Custody Agreement and such Power of Attorney are valid and binding agreements obligations of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with their respective terms.
(ev) Upon payment Delivery of the certificates and executed Share transfers for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery Agreement and the register in the Register of such Shares, as directed by Members of the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be entities designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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 U.S. Underwriters will acquire a pass good and 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, title to such Shares may be asserted against the Underwriters with respect to such entities free and clear of any security entitlement; for purposes interests, adverse claims, liens, equities, preferential arrangements and other encumbrances.
(vi) All information furnished in writing by or on behalf of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered for use in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of and Prospectuses is, and on the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingClosing Date will be, (iv) the Time of Sale Prospectus true, correct and complete, and does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at on the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make such information not misleading.
(vii) Unless otherwise noted on Schedule I, such Selling Shareholder is not an "investment company" or a company "controlled" by an "investment company" within the statements thereinmeaning of the Investment Company Act. If, as specified on Schedule I, such Selling Shareholder falls within either of the categories set forth in the light preceding sentence, such Selling Shareholder is in compliance in all material respects with the provisions of the circumstances under which they were madeInvestment Company Act.
(viii) Other than as permitted by the Act or the Rules and Regulations, such Selling Shareholder has not misleadingdistributed and will not distribute, (v) each broadly available road showprior to completion of the distribution of the Shares, if any, when considered together any prospectus or other offering material in connection with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light offering and sale of the circumstances under which they were made, not misleading and Shares.
(viix) the Prospectus does not contain and, Other than as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this Section 2(g) are limited Agreement, there is no broker, finder or other party that is entitled to statements or omissions in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based upon information relating to receive from such Selling Shareholder furnished any brokerage commission, finder's fee or other like payment as a result of any of the transactions contemplated by this Agreement.
(x) Any certificate signed by or on behalf of such Selling Shareholder (or any of the Attorneys-in-Fact) and delivered, pursuant to this Agreement, or in connection with the payment of the purchase price and delivery of the certificates for the Shares, to the Company in writing U.S. Underwriters or counsel for the U.S. Underwriters shall be deemed a representation and warranty by such Selling Shareholder expressly for use therein, it being understood and agreed that to the only such information is that described U.S. Underwriters as such in Section 11(b) hereofto the matters covered thereby.
(hxi) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 Each of the Code Selling Shareholders that is a non-U.S. person (as contemplated by the Power of Attorney) has validly submitted to the jurisdiction of any federal or (3) an entity deemed state court sitting in The City of New York, has validly and irrevocably waived, to hold “plan assets” the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such plan suit, action or account proceeding brought in any such court based on or arising under Section 3(42) this Agreement and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum, and has validly and irrevocably appointed CT Corporation System as its authorized agent to receive service of ERISAprocess in any such suit, 29 C.F.R.2510.3-101, action or otherwiseproceeding.
(ixii) Neither such Selling Shareholder nor any Except as set forth in Schedule B to each Power of its subsidiaries or controlled affiliatesAttorney, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval the undersigned is neither a member of the paymentNational Association of Securities Dealers, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official Inc. (including any officer or employee of the "NASD") nor "affiliated" with nor a government or government-owned or controlled entity or of "person associated with" such a public international organization, or any person acting in an official capacity for or on behalf of any member as contemplated by the rules of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling ShareholderNASD.
(ixiii) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, There is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding before or by or before any court or governmental agencyagency or body, authority domestic or body foreign, now pending, or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such contemplated or threatened against such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance Shareholder, or any injunction, restraining order or order of any nature by a court of competent jurisdiction, arising out of or in connection with the Anti-Corruption Laws, consummation of the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained hereintransactions contemplated by this Agreement.
Appears in 1 contract
Sources: u.s. Underwriting Agreement (Lasalle Re Holdings LTD)
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder severally represents and warrants to as set out in Section 2(a) below, as well as (i) if ▇▇▇▇▇ Sports & Media (Hong Kong) Holding Co. Ltd. (the “Principal Selling Shareholder”), as set out in Section 2(b) below, or (ii) if a Selling Shareholder other than the Principal Selling Shareholder (each, a “Non-Principal Selling Shareholder”), as set out in Section 2(c) below.
(a) Each Selling Shareholder severally represents and agrees with each of the Underwriters warrants that:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(bii) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust the Company, N.A., as Custodian, relating to the deposit of the Shares 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”) will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares and the ADSs.
(ciii) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”)) in respect of, the ADSs and the underlying Shares 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 powerShareholder, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the ADSs and the underlying Shares to be sold by such Selling Shareholder or a security entitlement in respect of such ADSs and the underlying Shares and to deposit with the Depositary the Shares to be sold by such Selling Shareholder against issuance of the ADSs evidencing the Shares.
(div) The Custody Agreement and Agreement, the Power of Attorney and the Lock-up Letter have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(ev) Other than the Registration Statement, the Time of Sale Prospectus and the Prospectus, such Selling Shareholder has not, directly or indirectly, prepared, used, authorized, approved or referred to, and will not distribute, prepare, use, authorize, approve or refer to, any offering material in connection with the offering and sale of the ADSs;
(vi) Upon payment for the Shares to be ADSs sold by such Selling Shareholder pursuant under this Agreement and the delivery by such Selling Shareholder 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 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 its agent of the ADSs in book-entry form to a securities account maintained by the Representatives at DTC or its nominee, and payment therefor in accordance with this Agreement, the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim will acquire a securities entitlement (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))), (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 UCCUCC with respect to such ADSs, 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 ” (as defined in Section 8-102 of the UCC, to such Shares ) may be asserted against the Underwriters with respect to such security entitlement; for purposes entitlement if, at such time, the Underwriters do not have notice of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” any adverse claim within the meaning of Section 8-102 105 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.
(fvii) Such Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or which constituted or would be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the ADSs.
(viii) [Except as disclosed to the Underwriters,] neither such Selling Shareholder nor any of its affiliates, directly or indirectly, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member of FINRA.
(ix) Except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, such Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the Offering contemplated by this Agreement.
(b) In addition, the Principal Selling Shareholder represents and warrants that:
(i) The Principal Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a Material Adverse Effect. The Principal Selling Shareholder is not prompted by any material information concerning the Company or its subsidiaries the Subsidiaries and Affiliated Entities which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(gii) (iA) Each document, if any, filed or to be filed pursuant to of the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act Registration Statement and the applicable rules and regulations of the Commission thereunder, (ii) each part of the ADS Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ivB) the Time of Sale Prospectus does not, and at the time of each sale of the Shares ADSs in connection with the offering Offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viC) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section 2(g2(b)(ii) are limited do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information is that described Underwriting Information (as such defined in Section 11(b) hereof9).
(hiii) Such Selling Shareholder is not (1A) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 None of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Principal Selling Shareholder nor any of its subsidiaries, nor any of their directors director, officer or officers employee thereof, nor, to the CompanyPrincipal Selling Shareholder’s knowledge, any employee, agent, affiliate affiliate, representative or representativeother person associated with or acting on behalf of the Principal Selling Shareholder or any of its subsidiaries or affiliates, is a Person that is, or is owned or controlled by one or more Persons that are:
(A1) the subject of any sanctions administered or enforced by the Sanctions, or
(B2) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea Korea, Sudan and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder Shareholder, and is constitutes the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust Company, N.A.[ ], as Custodian, relating to the deposit of the Additional Shares 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”) will not contravene any provision of (i) applicable law, or (ii) the certificate of incorporation, by-laws incorporation or similar constitutional document by‑laws of such Selling Shareholder (if such Selling Shareholder is not a natural personcorporation), or (iii) any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except that in the case of clauses (i) and (iii) as would would not individually, or in the aggregate, have a material adverse effect on such Selling Shareholder or on the power and ability of such Selling Shareholder to perform its obligations under this Agreement; and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Additional Shares.
(c) Such Selling Shareholder (i) has, and on the Option Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Additional Shares to be sold by such Selling Shareholder Shareholder, which will, as of the relevant Option Closing Date, be free and clear of all security interestsinterest, claims, liens, equities or other encumbrances encumbrances, and (ii) has the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Additional Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Additional Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are constitute the valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Additional Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Additional Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Additional Shares in the name of Cede or such other nominee and the crediting of such Additional Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”))) to such Additional Shares), (A) DTC shall be a “protected purchaser” of such Additional Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Additional Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Additional Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Additional Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has delivered to you an executed lock-up agreement in substantially the form attached hereto as Exhibit A.
(g) Such Selling Shareholder is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act, and the applicable rules and regulations of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingCommission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the Selling Shareholder Information (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon the Underwriter Information; provided that the representations and warranties set forth in this Section 2(g2(h) are limited apply only to statements or omissions made in the Registration Statement, Time of Sale Prospectus, the Prospectus, or any amendments or supplements thereto based reliance upon and in conformity with information relating to such Selling Shareholder furnished in writing to the Company in writing by such Selling Shareholder expressly specifically for use therein, ; it being understood and agreed that the only such information furnished in writing to the Company by such Selling Shareholder specifically for use therein is that described as information relating to such in Section 11(b) hereof.
(h) Such Selling Shareholder is not under the caption “Principal and Selling Shareholder” in the Registration Statement, the Time of Sale Prospectus or the Prospectus (1) an employee benefit plan subject to Title I of ERISAsuch information, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwiseSelling Shareholder Information”).
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative None of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers noror, to the Company’s knowledgeknowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate or representativethereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, such Such Selling Shareholder and each of its subsidiaries have has not knowingly engaged in, are is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(ja) Such None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will nottake any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, use the proceeds of the offeringto any Government Official in order to influence official action, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or person in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Antiapplicable anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person corruption laws; (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kb) Such such Selling Shareholder and each of its subsidiaries have conducted and will conduct their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the Anti-Corruption Lawsrepresentations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, or to the knowledge of such the Selling Shareholder, threatened. .
(j) Such Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in [Switzerland] or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and affiliates have instituted delivery of the Additional Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and maintained and will continue delivery of the Additional Shares by the Underwriters in the manner contemplated herein.
(l) Such Selling Shareholder has the power to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctionssubmit, and with pursuant to Section 21 has, to the representations extent permitted by law, legally, validly, effectively and warranties contained hereinirrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 21), and has the power to designate, appoint and empower, and pursuant to Section 21, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholder Shareholders, acting severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Computershare Trust CompanyMellon Investor Services, N.A.L.L.C., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”"CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as such Selling Shareholder’s '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”) "POWER OF ATTORNEY"), will not contravene any provision of applicable law, or the certificate of incorporation, incorporation or by-laws or similar constitutional document of such Selling Shareholder (Shareholder, if such Selling Shareholder is not a natural person)corporation, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares 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, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for The delivery of the Shares to be sold by such Selling Shareholder pursuant to Shareholder, assuming payment therefor in accordance with the terms of this Agreement, delivery of will pass title to such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)))claims, (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 as defined in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCUniform Commercial Code as in effect in The Commonwealth of Massachusetts, and any other liens, encumbrances, equities and claims attributable to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCShareholder.
(f) Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the The Registration Statement, when such part it became effective, did not contain and each such partand, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iiiii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectuscomply and, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a comply in all material fact or omit to state a material fact necessary to make respects with the statements therein, in Securities Act and the light applicable rules and regulations of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading Commission thereunder and (viiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this Section 2(g) are limited paragraph do not apply to statements or omissions in the Registration Statement, Time of Sale Prospectus, Statement or the Prospectus, or any amendments or supplements thereto Prospectus based upon information relating to such Selling Shareholder any Underwriter furnished to the Company in writing by such Selling Shareholder Underwriter through you expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 11(b) hereof.
(h) Such Selling Shareholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.2510.3-101, or otherwise.
(i) Neither such Selling Shareholder nor any of its subsidiaries or controlled affiliates, nor any of their directors or officers, nor, to such Selling Shareholder’s knowledge, any employee, agent or representative of such Selling Shareholder or of any of its subsidiaries or non-controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to improperly influence official action by that Government Official for the benefit of such Selling Shareholder or its subsidiaries or affiliates, or to otherwise secure any improper advantage, or to any person in violation of the Anti-Corruption Laws. For purposes of these Sections (i)(i) through (iii), “controlled affiliate” means an affiliate over which such Selling Shareholder possesses, directly or indirectly, the power to direct or cause the direction of the management and policies thereof, whether through the ownership of voting securities, by contract or otherwise. For purposes of the representations in this Section 2, the Company and each of its subsidiaries shall not be considered a subsidiary, controlled affiliate or affiliate of such Selling Shareholder.
(i) The operations of such Selling Shareholder and each of its subsidiaries and controlled affiliates are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements and the Anti-Money Laundering Laws.
(ii) Neither such Selling Shareholder nor any of its subsidiaries, nor any of their directors or officers nor, to the Company’s knowledge, any employee, agent, affiliate or representative, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(iii) For the past five years, such Selling Shareholder and each of its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(j) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person.
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions;
(ii) to fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Such Selling Shareholder and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained herein.
Appears in 1 contract
Sources: Underwriting Agreement (Seachange International Inc)