REPRESENTATIONS AND WARRANTIES OF THE SELLING. Stockholders. Each of the Selling Stockholders hereby ------------ represents and warrants, jointly but not severally, to the several Underwriters that: (a) The Selling Stockholder has all right, power and authority to enter into this Agreement, the Power of Attorney for Sale of Common Stock of Signature Resorts, Inc. (the "Power of Attorney") and the Custody Agreement for Sale of Common Stock of Signature Resorts, Inc. (the "Custody Agreement") and to consummate the transactions contemplated hereby and thereby, including, without limitation, the sale, assignment, transfer and delivery of the Common Shares to be sold by the Selling Stockholder pursuant to this Agreement. Each of the Power of Attorney and the Custody Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitutes the valid and binding instrument or agreement of the Selling Stockholder enforceable in accordance with its terms except as such enforceability may be limited by general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally. (b) The execution, delivery and performance of the Custody Agreement and the Power of Attorney by the Selling Stockholder (i) requires no action, consent or approval by or in respect of, or filing with, any governmental body, agency, official or authority or any individual, corporation, partnership, association, trust or other entity or organization which has not been made or obtained and (ii) does not constitute a default under or give rise to any right of termination, cancellation or acceleration of any right or obligation of such party or a loss of any benefit to which such party is entitled under any provision of any material agreement, contract, indenture, lease or other instrument binding upon such party or any material license, franchise, permit or other similar authorization held by such party or result in the creation or imposition of any mortgage, life interest, lien (except as created by such agreements), pledge, charge, security interest, fiduciary assignment, attachment, encumbrance or other adverse claim of any kind in respect of any asset of such party. (c) The Selling Stockholder has, and immediately prior to the delivery of any Common Shares to the Underwriter will have, good and valid title to the Common Shares to be sold by the Selling Stockholder pursuant to this Agreement, free and clear of all liens, encumbrances, equities or claims or any nature, and full right, power and authority to sell, assign, transfer and deliver such Common Shares, subject only to this Agreement, the Power of Attorney and the Custody Agreement; and upon delivery of such Common Shares and payment therefor pursuant to this Agreement, good and valid title to such Common Shares, free and clear of all liens, encumbrances, equities or claims of any nature will pass to the several Underwriters. (d) The Selling Stockholder will not, for a period of 90 days after the date of the Prospectus, either directly or indirectly, offer to sell, agree to sell or otherwise sell or dispose of any shares of Common Stock of the Company, any options or warrants to purchase any shares of Common Stock of the Company, or any securities or rights convertible into or exchangeable for shares of Common Stock of the Company, owned either directly or indirectly by the Selling Stockholder or with respect to which the Selling Stockholder has the power of disposition, without the prior written consent of ▇▇▇▇▇▇▇▇▇▇ Securities. (e) The Selling Stockholder has not, in connection with the sale of the Selling Stockholder's Common Shares to the Underwriters, distributed any offering material other than that permitted by the Act. (f) The attention of the Selling Stockholder has been directed to the rules of the Commission which prohibit the Selling Stockholder from bidding for or purchasing any shares of the Common Stock of the Company, or attempting to induce anyone else to bid for or purchase such shares, or taking any other action which might tend to stabilize or manipulate the price of the Common Stock, until the distribution of Common Stock pursuant to the Registration Statement has been completed. The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Shares. (g) The Selling Stockholder has duly executed and placed in custody all of the documents to be delivered to the Custodian pursuant to the Custody Agreement, which documents represent all of the Common Shares to be sold by the Selling Stockholder pursuant to this Agreement. (h) The Selling Stockholder specifically agrees that the Common Shares represented by the certificate(s) held in custody for the Selling Stockholder pursuant to the Custody Agreement are subject to the interest of the Company, the Underwriters and all the other Selling Stockholders who may become parties to this Agreement; and, in consideration of those interests, and for the purpose of completing the transactions contemplated by this Agreement and the Power of Attorney, the Power of Attorney, the arrangements made by the Selling Stockholder for such custody, and the appointment by the Selling Stockholder of the Attorney-in-Fact by the Power of Attorney, shall be deemed coupled with an interest and shall be irrevocable subject to Article V
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE SELLING. Stockholders. Stockholders Each of the Selling Stockholders Stockholder hereby ------------ represents and warrants, jointly but severally and not severallyjointly, to the several Underwriters Underwriter on the date hereof, and shall be deemed to represent and warrant to the Underwriter on the Closing Date, that:
(a) The Selling Stockholder has all right, power and authority to enter into this Agreement, is the Power of Attorney for Sale of Common Stock of Signature Resorts, Inc. (the "Power of Attorney") and the Custody Agreement for Sale of Common Stock of Signature Resorts, Inc. (the "Custody Agreement") and to consummate the transactions contemplated hereby and thereby, including, without limitation, the sale, assignment, transfer and delivery lawful owner of the Common Firm Secondary Shares to be sold by the Selling Stockholder pursuant to this Agreement and has, and on the Closing Date, will have, good and valid title to such Firm Secondary Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) The Selling Stockholder has full legal right, power and authority, and all consents, approvals, authorizations and orders required, to enter into (i) this Agreement. Each , (ii) the Stock Custody Agreement executed and delivered by the Selling Stockholder and Computershare Shareholder Services, Inc., as custodian (the “Custodian”), relating to the deposit of the Firm Secondary Shares to be sold by the Selling Stockholder (the “Custody Agreement”), and (iii) the Power of Attorney appointing certain individuals named therein as the Selling Stockholder’s attorneys-in-fact (the “Attorneys”) to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus (the “Power of Attorney”) to sell, assign, transfer and deliver the Firm Secondary Shares to be sold by the Selling Stockholder in the manner provided herein. The Selling Stockholder, if not an individual, has been duly incorporated (or organized) and is validly existing as a corporation (or other organization) in good standing under the laws of its jurisdiction (or organization).
(c) Each of the Agreement, the Custody Agreement, and the Custody Agreement Power of Attorney of the Selling Stockholder has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and, assuming the due authorization, execution and constitutes delivery of this Agreement by the Company, the Underwriter and the other Selling Stockholders, is a valid and binding instrument or agreement of the Selling Stockholder, enforceable as to the Selling Stockholder enforceable in accordance with its terms terms, except as such to the extent enforceability may be limited by general equitable principles, (i) the application of bankruptcy, insolvency, reorganization, moratorium or insolvency and other laws affecting creditors' ’ rights generally.
(b) The execution, delivery and performance of the Custody Agreement and the Power of Attorney by the Selling Stockholder (i) requires no action, consent or approval by or in respect of, or filing with, any governmental body, agency, official or authority or any individual, corporation, partnership, association, trust or other entity or organization which has not been made or obtained generally and (ii) does not constitute equitable principles being applied at the discretion of a default under or give rise to any right of terminationcourt before which a proceeding may be brought, cancellation or acceleration of any right or obligation of such party or a loss of any benefit to which such party is entitled under any provision of any material agreement, contract, indenture, lease or other instrument binding upon such party or any material license, franchise, permit or other similar authorization held by such party or result in the creation or imposition of any mortgage, life interest, lien (except as created rights to indemnity and contribution hereunder may be limited by such agreements)federal or state securities laws and, pledgepursuant to the Power of Attorney, charge, security interest, fiduciary assignment, attachment, encumbrance or other adverse claim of any kind in respect of any asset of such party.
(c) The the Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and immediately prior deliver on the Selling Stockholder’s behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the delivery of any Common Shares to the Underwriter will have, good and valid title to the Common Firm Secondary Shares to be sold by the Selling Stockholder pursuant to this Agreement, free and clear .
(d) Except as would not prevent or impair the consummation of all liens, encumbrances, equities or claims or any nature, and full right, power and authority to sell, assign, transfer and deliver such Common Shares, subject only to the transactions contemplated by this Agreement, none of the sale of the Firm Secondary Shares by the Selling Stockholder, the execution, delivery or performance by the Selling Stockholder of this Agreement, the Custody Agreement and the Power of Attorney of the Selling Stockholder by or on behalf of the Selling Stockholder, the compliance by the Selling Stockholder with all the provisions hereof and thereof nor the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby (i) conflicts with or will conflict with or constitutes or will constitute a breach of or a default under, the organizational documents of the Selling Stockholder, if the Selling Stockholder is not an individual, or any agreement, indenture, lease or other instrument to which the Selling Stockholder is a party or by which the Selling Stockholder or any property of the Selling Stockholder is bound or (ii) violates any statute, law, regulation, ruling, filing, judgment, injunction, order or decree applicable to the Selling Stockholder or any property of the Selling Stockholder. No filing with, or consent, approval, authorization, order, registration, qualification or decree of, any court, regulatory body, administrative agency or other governmental body, agency or official is necessary or required for the performance by the Selling Stockholder of its obligations hereunder or in the Power of Attorney and the Custody Agreement; , or in connection with the sale and upon delivery of such Common the Firm Secondary Shares and payment therefor pursuant to this Agreement, good and valid title to such Common Shares, free and clear of all liens, encumbrances, equities or claims of any nature will pass to the several Underwriters.
(d) The Selling Stockholder will not, for a period of 90 days after the date of the Prospectus, either directly or indirectly, offer to sell, agree to sell or otherwise sell or dispose of any shares of Common Stock of the Company, any options or warrants to purchase any shares of Common Stock of the Company, or any securities or rights convertible into or exchangeable for shares of Common Stock of the Company, owned either directly or indirectly by the Selling Stockholder hereunder or with respect the consummation of the transactions contemplated by this Agreement to which be performed by the Selling Stockholder has Stockholder, except filings on Form 3, Form 4, Schedule 13D or Schedule 13G, as applicable, or such filings, consents, approvals, authorizations, registrations, qualifications or decrees as may have previously been made or obtained or as may be required under the power of disposition, without the prior written consent of ▇▇▇▇▇▇▇▇▇▇ SecuritiesAct or state securities laws.
(e) The information in the Prospectus under the caption “Selling Stockholders” that specifically relates to the Selling Stockholder has (such information, with respect to all Selling Stockholders, the “Selling Stockholder Information”) does not, and will not on the Closing Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in connection with the sale light of the Selling Stockholder's Common Shares to the Underwriterscircumstances under which they were made, distributed any offering material other than that permitted by the Actnot misleading.
(f) The attention of At any time prior to the Closing Date, if there is any change in the Selling Stockholder has been directed to the rules of the Commission which prohibit Information, the Selling Stockholder from bidding for or purchasing any shares will immediately notify the Company and the Underwriter of the Common Stock of the Company, or attempting to induce anyone else to bid for or purchase such shares, or taking any other action which might tend to stabilize or manipulate the price of the Common Stock, until the distribution of Common Stock change.
(g) Other than excepted activity pursuant to Regulation M under the Registration Statement has been completed. The Exchange Act, the Selling Stockholder has not taken and will not take, directly or indirectly, any action which is that constituted, or any action designed to to, or which has constituted or which that might reasonably be expected to cause or result in or constitute, under the Act or otherwise, stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Common Shares.
(gh) Certificates in negotiable form or book-entry security entitlements for the Firm Secondary Shares to be sold by the Selling Stockholder hereunder have been placed in custody, for delivery under this Agreement, under the Power of Attorney and Custody Agreement made with the Custodian. The Selling Stockholder has duly executed and placed agrees that the shares represented by the certificates or book-entry security entitlements held in custody all for the Selling Stockholder under such Power of Attorney and Custody Agreement are subject to the interests of the documents Underwriter hereunder, that the arrangements made by the Selling Stockholder for such custody are to be delivered to that extent irrevocable and that the Custodian pursuant to the Custody Agreement, which documents represent all obligations of the Common Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death of any individual Selling Stockholder or the occurrence of any other event. Upon delivery of and payment for the Firm Secondary Shares to be sold by the Selling Stockholder pursuant to this Agreement, good and valid title to such Shares will pass to the Underwriter, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(hi) The Selling Stockholder specifically agrees that the Common Shares represented does not have any registration or other similar rights to have any equity or debt securities registered for sale by the certificate(sCompany under the Registration Statement or included in the offering contemplated by this Agreement.
(j) held in custody for There are no legal or governmental proceedings pending to which the Selling Stockholder pursuant is a party or of which any property of the Selling Stockholder is the subject which, if determined adversely to the Custody Agreement are subject to Selling Stockholder, individually or in the interest aggregate, would prevent or impair the consummation of the Company, the Underwriters and all the other Selling Stockholders who may become parties to this Agreement; and, in consideration of those interests, and for the purpose of completing the transactions contemplated by this Agreement and Agreement.
(k) Except as otherwise disclosed to the Power of AttorneyUnderwriter in writing, the Power of Attorney, the arrangements made by neither the Selling Stockholder for such custodynor any of his, and her or its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with any member firm of FINRA or is a person associated with a member (within the appointment by meaning of the FINRA bylaws) of FINRA.
(l) Without the prior consent of the Underwriter, the Selling Stockholder has not made and will not make any offer relating to the Firm Secondary Shares that would constitute a “free writing prospectus,” as defined in Rule 405 (any such “free writing prospectus” of the Attorney-in-Fact any Selling Stockholder, a “Selling Stockholder Free Writing Prospectus”), and it has not used, referred to or distributed, and will not use, refer to or distribute, any such Selling Stockholder Free Writing Prospectus. Any Selling Stockholder Free Writing Prospectus consented to by the Power of Attorney, shall be deemed coupled with an interest and shall be irrevocable subject Underwriter is hereinafter referred to Article Vas a “
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE SELLING. Stockholders. Each Selling Stockholder (which for purposes of this Agreement, unless the Selling Stockholders hereby ------------ context requires otherwise, shall include Interwest), severally and not jointly, represents and warrants, jointly but not severally, warrants to the several Underwriters each Underwriter that:
(a) The such Selling Stockholder has all rightnow is and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, power and authority to enter into this Agreementas the case may be) will be, the Power of Attorney for Sale of Common Stock of Signature Resorts, Inc. (the "Power of Attorney") and the Custody Agreement for Sale of Common Stock of Signature Resorts, Inc. (the "Custody Agreement") and to consummate the transactions contemplated hereby and thereby, including, without limitation, the sale, assignment, transfer and delivery lawful owner of the Common number of Shares to be sold by the such Selling Stockholder pursuant to this Agreement. Each Agreement and has and, at the time of the Power of Attorney and the Custody Agreement has been duly authorizeddelivery thereof, executed and delivered by or on behalf of the Selling Stockholder and constitutes the will have valid and binding instrument marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or agreement the additional time of purchase, as the Selling Stockholder enforceable in accordance with its terms except as case may be), the Underwriters will acquire valid and marketable title to such enforceability may be limited by general equitable principlesShares free and clear of any claim, bankruptcylien, insolvencyencumbrance, reorganizationsecurity interest, moratorium community property right, restriction on transfer or other laws affecting creditors' rights generally.defect in title;
(b) The execution, delivery and performance of the Custody Agreement and the Power of Attorney by the such Selling Stockholder (i) requires no action, consent or approval by or in respect of, or filing with, any governmental body, agency, official or authority or any individual, corporation, partnership, association, trust or other entity or organization which has not been made or obtained and (ii) does not constitute a default under or give rise to any right at the time of termination, cancellation or acceleration of any right or obligation delivery of such party Shares (whether the time of purchase or a loss additional time of any benefit to which such party is entitled under any provision of any material agreementpurchase, contract, indenture, lease or other instrument binding upon such party or any material license, franchise, permit or other similar authorization held by such party or result in as the creation or imposition of any mortgage, life interest, lien (except as created by such agreements), pledge, charge, security interest, fiduciary assignment, attachment, encumbrance or other adverse claim of any kind in respect of any asset of such party.
(ccase may be) The Selling Stockholder has, and immediately prior to the delivery of any Common Shares to the Underwriter will have, good and valid title to the Common Shares to be sold by the Selling Stockholder pursuant to this Agreement, free and clear of all liens, encumbrances, equities or claims or any nature, and full legal right, power and authority capacity, and any approval required by law (other than those imposed by the Act and the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver such Common Shares, subject only to Shares in the manner provided in this Agreement, the Power of Attorney ;
(c) this Agreement and the Custody Agreement among [__________], as custodian, and the Selling Stockholders (the "Custody Agreement; ") have been duly executed and upon delivery delivered by such Selling Stockholder and each is a legal, valid and binding agreement of such Common Shares and payment therefor pursuant to this Agreement, good and valid title to such Common Shares, free and clear of all liens, encumbrances, equities or claims of any nature will pass to the several Underwriters.Selling Stockholder enforceable in accordance with its terms;
(d) The when the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchase, additional time of purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not, for not contain an untrue statement of a period of 90 days after material fact or omit to state a material fact required to be stated therein or necessary to make the date of the Prospectus, either directly or indirectly, offer to sell, agree to sell or otherwise sell or dispose of any shares of Common Stock of the Company, any options or warrants to purchase any shares of Common Stock of the Company, or any securities or rights convertible into or exchangeable for shares of Common Stock of the Company, owned either directly or indirectly by the Selling Stockholder or with respect to which the Selling Stockholder has the power of disposition, without the prior written consent of ▇▇▇▇▇▇▇▇▇▇ Securities.statements therein not misleading;
(e) The such Selling Stockholder has notduly and irrevocably authorized the Representatives of the Selling Stockholders, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the sale of transactions contemplated thereby and to deliver the Selling Stockholder's Common Shares to the Underwriters, distributed any offering material other than that permitted by the Act.
(f) The attention of the Selling Stockholder has been directed to the rules of the Commission which prohibit the Selling Stockholder from bidding for or purchasing any shares of the Common Stock of the Company, or attempting to induce anyone else to bid for or purchase such shares, or taking any other action which might tend to stabilize or manipulate the price of the Common Stock, until the distribution of Common Stock pursuant to the Registration Statement has been completed. The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Shares.
(g) The Selling Stockholder has duly executed and placed in custody all of the documents to be delivered to the Custodian pursuant to the Custody Agreement, which documents represent all of the Common Shares to be sold by the such Selling Stockholder and receive payment therefor pursuant to this Agreement.
(h) The Selling Stockholder specifically agrees that the Common Shares represented by the certificate(s) held in custody for the Selling Stockholder pursuant to the Custody Agreement are subject to the interest of the Company, the Underwriters and all the other Selling Stockholders who may become parties to this Agreementhereto; and, in consideration of those interests, and for the purpose of completing the transactions contemplated by this Agreement and the Power of Attorney, the Power of Attorney, the arrangements made by the Selling Stockholder for such custody, and the appointment by the Selling Stockholder of the Attorney-in-Fact by the Power of Attorney, shall be deemed coupled with an interest and shall be irrevocable subject to Article V
Appears in 1 contract
Sources: Underwriting Agreement (Corixa Corp)
REPRESENTATIONS AND WARRANTIES OF THE SELLING. Stockholders. Each of the Selling Stockholders hereby ------------ Stockholder represents and warrants, jointly but not severally, warrants to the several Underwriters each Underwriter that:
(a) The As of the date hereof, such Selling Stockholder has good title to its shares of common and/or preferred stock of the Company, to be sold by such Selling Stockholder upon conversion into Common Stock, as applicable, pursuant to this Agreement and free of all adverse claims.
(b) Upon the consummation of the public offering of the Shares, all of such Selling Stockholder's shares of Classes A, B, C and D Preferred Stock will have been converted, if applicable, into shares of Common Stock pursuant to the Company's Third Amended and Restated Articles of Incorporation.
(c) On the Closing Date, such Selling Stockholder will have good title to the Shares to be sold by such Selling Stockholder pursuant to this Agreement, free of all adverse claims.
(d) Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority authority, and all authorization and approval required by law, to enter into this Agreement, the Power Custody Agreement signed by such Selling Stockholder and The Bank of Attorney for Sale New York, as Custodian, relating to the deposit of Common Stock of Signature Resorts, Inc. the Shares to be sold by such Selling Stockholder (the "Power of AttorneyCUSTODY AGREEMENT") and the Custody Agreement for Sale Power of Common Stock Attorney of Signature Resortssuch Selling Stockholder, Inc. except Clipper Capital Associates, L.P., Clipper/European Re, L.P., Clipper/Merban, L.P., Clipper Equity Partners I, L.P. and Clipper/Merchant Partners, L.P. (the "Custody AgreementCLIPPER SELLING STOCKHOLDERS"), appointing certain individuals as such Selling Stockholder's attorneys-in-fact (the "ATTORNEYS") and to consummate the extent set forth therein, relating to the transactions contemplated hereby and thereby, including, without limitation, by the sale, assignmentRegistration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, transfer and delivery of deliver the Common Shares to be sold by the such Selling Stockholder pursuant to this Agreement. Each of in the Power of Attorney manner provided herein and the Custody therein.
(e) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitutes the valid and binding instrument or agreement of the Selling Stockholder enforceable in accordance with its terms except as such enforceability may be limited by general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally.
(b) The execution, delivery and performance of the Custody Agreement and the Power of Attorney by the Selling Stockholder (i) requires no action, consent or approval by or in respect of, or filing with, any governmental body, agency, official or authority or any individual, corporation, partnership, association, trust or other entity or organization which has not been made or obtained and (ii) does not constitute a default under or give rise to any right of termination, cancellation or acceleration of any right or obligation of such party or a loss of any benefit to which such party is entitled under any provision of any material agreement, contract, indenture, lease or other instrument binding upon such party or any material license, franchise, permit or other similar authorization held by such party or result in the creation or imposition of any mortgage, life interest, lien (except as created by such agreements), pledge, charge, security interest, fiduciary assignment, attachment, encumbrance or other adverse claim of any kind in respect of any asset of such party.
(c) The Selling Stockholder has, and immediately prior to the delivery of any Common Shares to the Underwriter will have, good and valid title to the Common Shares to be sold by the Selling Stockholder pursuant to this Agreement, free and clear of all liens, encumbrances, equities or claims or any nature, and full right, power and authority to sell, assign, transfer and deliver such Common Shares, subject only to this Agreement, the Power of Attorney and the Custody Agreement; and upon delivery of such Common Shares and payment therefor pursuant to this Agreement, good and valid title to such Common Shares, free and clear of all liens, encumbrances, equities or claims of any nature will pass to the several Underwriters.
(d) The Selling Stockholder will not, for a period of 90 days after the date of the Prospectus, either directly or indirectly, offer to sell, agree to sell or otherwise sell or dispose of any shares of Common Stock of the Company, any options or warrants to purchase any shares of Common Stock of the Company, or any securities or rights convertible into or exchangeable for shares of Common Stock of the Company, owned either directly or indirectly by the Selling Stockholder or with respect to which the Selling Stockholder has the power of disposition, without the prior written consent of ▇▇▇▇▇▇▇▇▇▇ Securities.
(e) The Selling Stockholder has not, in connection with the sale of the Selling Stockholder's Common Shares to the Underwriters, distributed any offering material other than that permitted by the Act.
(f) The attention Custody Agreement of the such Selling Stockholder has been directed to the rules of the Commission which prohibit the duly authorized, executed and delivered by such Selling Stockholder from bidding for or purchasing any shares and is a valid and binding agreement of the Common Stock of the Companysuch Selling Stockholder, or attempting to induce anyone else to bid for or purchase such shares, or taking any other action which might tend to stabilize or manipulate the price of the Common Stock, until the distribution of Common Stock pursuant to the Registration Statement has been completed. The Selling Stockholder 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 enforceable in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Sharesaccordance with its terms.
(g) The Power of Attorney of such Selling Stockholder, if applicable, has been duly authorized, executed and delivered by such Selling Stockholder has duly executed and placed in custody all is a valid and binding instrument of the documents to be delivered to the Custodian pursuant to the Custody Agreementsuch Selling Stockholder, which documents represent all of the Common Shares to be sold by the Selling Stockholder pursuant to this Agreement.
(h) The Selling Stockholder specifically agrees that the Common Shares represented by the certificate(s) held in custody for the Selling Stockholder pursuant to the Custody Agreement are but subject to the interest of the Company, the Underwriters and all the other Selling Stockholders who may become parties to this Agreement; and, in consideration of those interests, and for the purpose of completing the transactions contemplated by this Agreement and the Power of Attorney, the Power of Attorney, the arrangements made by the Selling Stockholder for such custody, and the appointment by the Selling Stockholder of the Attorney-in-Fact by the Power of Attorney, shall be deemed coupled with an interest and shall be irrevocable subject to Article Vany conditions or limitations set forth therein,
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE SELLING. StockholdersShareholders. Each of Selling Shareholder, severally and not jointly, represents ------------ and warrants to and agrees with the Selling Stockholders hereby ------------ represents several Underwriters and warrantsthe Company, jointly but not severally, and shall be deemed to represent and warrant to the several Underwriters and the Company on each Closing Date, that:
(a) The Such Selling Stockholder Shareholder has duly executed a durable power of attorney and custody agreement ("Durable Power of Attorney and Custody Agreement") naming ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, or either of them, as such Selling Shareholder's attorney(s)-in-fact ("Attorneys-in-Fact") for the purpose of entering into and carrying out this Agreement and naming U.S. Stock Transfer Corporation as custodian ("Custodian") of the Shares of such Selling Shareholder for the purpose of selling such Shares to the Underwriters on each Closing Date and receiving payment therefor.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Shareholder of this Agreement and the Durable Power of Attorney and Custody Agreement, and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder, as set forth on Schedule I annexed hereto, have been obtained. Such Selling Shareholder either (i) has, and at the time of delivery thereof hereunder such Selling Shareholder will have, good and valid title to the Shares proposed to be sold by such Selling Shareholder hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights (collectively, "Encumbrances"), other than any created by the Durable Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters, (ii) has delivered to the Company an irrevocable conditional notice of exercise (a "Notice of Exercise") relating to the exercise of one or more options to purchase shares of Common Stock equal to or greater than the number of Shares proposed to be sold by such Selling Shareholder hereunder, or (iii) has delivered a Notice of Exercise relating to such number of shares of Common Stock that, together with the Shares of Common Stock to which such Selling Shareholder has good and valid title, free and clear of all Encumbrances, other than any created by the Durable Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters, is equal to or greater than the number of Shares proposed to be sold by such Selling Shareholder hereunder. Such Selling Shareholder has full right, power and authority to enter into this Agreement, the Power of Attorney for Sale of Common Stock of Signature Resorts, Inc. (the "Power of Attorney") Agreement and the Custody Agreement for Sale of Common Stock of Signature Resorts, Inc. (the "Custody Agreement") and to consummate the transactions contemplated hereby and thereby, including, without limitation, the sale, assignment, transfer and delivery of the Common Shares to be sold by the Selling Stockholder pursuant to this Agreement. Each of the Durable Power of Attorney and the Custody Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitutes the valid and binding instrument or agreement of the Selling Stockholder enforceable in accordance with its terms except as such enforceability may be limited by general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally.
(b) The execution, delivery and performance of the Custody Agreement and the Power of Attorney by the Selling Stockholder (i) requires no action, consent or approval by or in respect of, or filing with, any governmental body, agency, official or authority or any individual, corporation, partnership, association, trust or other entity or organization which has not been made or obtained and (ii) does not constitute a default under or give rise to any right of termination, cancellation or acceleration of any right or obligation of such party or a loss of any benefit to which such party is entitled under any provision of any material agreement, contract, indenture, lease or other instrument binding upon such party or any material license, franchise, permit or other similar authorization held by such party or result in the creation or imposition of any mortgage, life interest, lien (except as created by such agreements), pledge, charge, security interest, fiduciary assignment, attachment, encumbrance or other adverse claim of any kind in respect of any asset of such party.
(c) The Selling Stockholder has, and immediately prior to the delivery of any Common Shares to the Underwriter will have, good and valid title to the Common Shares to be sold by the Selling Stockholder pursuant to this Agreement, free and clear of all liens, encumbrances, equities or claims or any nature, and full right, power and authority to sell, assign, transfer and deliver the Shares to be sold by such Common Shares, subject only to this Agreement, the Power of Attorney and the Custody Agreement; and upon delivery of such Common Shares and payment therefor pursuant to this Agreement, good and valid title to such Common SharesSelling Shareholder hereunder, free and clear of all voting trust arrangements, liens, encumbrances, equities security interests, equities, claims and community or marital property rights, other than any created by the Durable Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters. Upon delivery of and payment for such Shares hereunder, the Underwriters will acquire good and valid title thereto, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims of any nature will pass to the several Underwritersand community or marital property rights.
(dc) The Such Selling Stockholder Shareholder has not distributed and will not, for a period of 90 days after the date of the not distribute any Preliminary Prospectus, either directly or indirectly, offer to sell, agree to sell or otherwise sell or dispose of any shares of Common Stock of the Company, any options or warrants to purchase any shares of Common Stock of the Company, Prospectus or any securities or rights convertible into or exchangeable for shares of Common Stock of the Company, owned either directly or indirectly by the Selling Stockholder or with respect to which the Selling Stockholder has the power of disposition, without the prior written consent of ▇▇▇▇▇▇▇▇▇▇ Securities.
(e) The Selling Stockholder has not, other material in connection with the offering and sale of the Shares. Such Selling Stockholder's Common Shares to the Underwriters, distributed any offering material other than that permitted by the Act.
(f) The attention of the Selling Stockholder has been directed to the rules of the Commission which prohibit the Selling Stockholder from bidding for or purchasing any shares of the Common Stock of the Company, or attempting to induce anyone else to bid for or purchase such shares, or taking any other action which might tend to stabilize or manipulate the price of the Common Stock, until the distribution of Common Stock pursuant to the Registration Statement has been completed. The Selling Stockholder Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to could cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common SharesStock.
(gd) The execution, delivery and performance by such Selling Stockholder Shareholder of this Agreement and the Durable Power of Attorney and Custody Agreement will not, if applicable, result in the violation of any provisions of the Certificate of Incorporation, By-laws or other governing documents of such Selling Shareholder, or constitute a breach, or be in contravention, of any provision of any agreement, franchise, license, indenture, mortgage, deed of trust or other instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or such Selling Shareholder's property may be bound or affected, or any statute, rule or regulation applicable to such Selling Shareholder, or violate any order or decree of any court, regulatory body, administrative agency or other governmental body having jurisdiction over such Selling Shareholder or any of such Selling Shareholder's property. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of, and performance under, this Agreement by such Selling Shareholder or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, except for compliance with the Act, the Exchange Act, the Blue Sky Laws applicable to the public offering of the Shares by the Underwriters and the clearance of such offering with the NASD. Such Selling Shareholder hereby represents and warrants that each Attorney-in-Fact has been duly appointed as attorney-in-fact by such Selling Shareholder for the purpose of entering into and carrying out this Agreement, and the Durable Power of Attorney and Custody Agreement has been duly executed and placed in custody all delivered by or on behalf of the documents to be delivered such Selling Shareholder to the Custodian Representatives.
(e) This Agreement and the Durable Power of Attorney and Custody Agreement are each valid and binding agreements of such Selling Shareholder enforceable in accordance with their respective terms.
(f) Except with respect to any Shares subject to issuance upon the exercise of options pursuant to a Notice of Exercise, such Selling Shareholder has deposited in custody, under the Durable Power of Attorney and Custody Agreement, which documents represent all of certificates in negotiable form for the Common Shares to be sold hereunder by such Selling Shareholder as set forth opposite such Selling Shareholder's name on Schedule I annexed hereto (including the Selling Stockholder maximum number of Optional Shares set forth on Schedule I) for the purpose of further delivery pursuant to this Agreement.
(h) The . Such Selling Stockholder specifically Shareholder agrees that any Shares of such Selling Shareholder on deposit with the Common Shares represented by the certificate(s) held in custody for the Selling Stockholder pursuant to the Custody Agreement Custodian are subject to the interest interests of the Company, the Underwriters and all the other Selling Stockholders who may become parties Shareholders, that the arrangements made for such custody, the election to this Agreement; and, in consideration exercise an option pursuant to any Notice of those interestsExercise, and for the purpose appointment of completing the transactions contemplated by Attorneys-in-Fact pursuant to the Durable Power of Attorney and Custody Agreement, are irrevocable to the extent provided therein, and that the obligations of such Selling Shareholder hereunder and under the Durable Power of Attorney and Custody Agreement shall not be terminated, except as provided in this Agreement and the Durable Power of AttorneyAttorney and 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 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 or corporation, by the dissolution, winding up or other event affecting the legal life of such entity, or by the occurrence of any other event. If any individual Selling Shareholder, trustee or executor should die or become incapacitated, or any such trust, estate, partnership or corporation should be terminated, or if any other event should occur before the delivery of the Shares hereunder, the certificates for Shares then on deposit with the Custodian shall, to the extent such Shares are purchased by the Underwriters, be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Durable Power of AttorneyAttorney and Custody Agreement as if such death, incapacity, termination or other event had not occurred, regardless of whether or not the arrangements made by the Custodian shall have received notice thereof. Such Selling Stockholder for such custody, and the appointment by the Selling Stockholder of the Shareholder represents that each Attorney-in-Fact has been authorized by such Selling Shareholder to execute and deliver this Agreement and the Power Custodian has been authorized to receive and acknowledge receipt of Attorneythe proceeds of sale of the Shares sold by such Selling Shareholder against delivery thereof and otherwise to act on behalf of such Selling Shareholder.
(g) Insofar as it relates to such Selling Shareholder, each Preliminary Prospectus, as of its date, has conformed in all material respects with the requirements of the Act and, as of its date, has not included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and on the effective date of the Registration Statement and at all times subsequent thereto up to each Closing Date, (i) the Registration Statement and the Prospectus, as they relate to such Selling Shareholder, did or will conform to the requirements of the Act, and (ii) neither the Registration Statement nor the Prospectus as it relates to such Selling Shareholder did or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(h) To the knowledge of each Selling Shareholder, the representations and warranties of the Company set forth in section 2 hereof are true and correct.
(i) The information contained in such Selling Shareholder's Selling Shareholders' Questionnaire completed in connection with the Company's public offering and delivered to the Representatives was, as of the date of such questionnaire, and is, as of the date of this Agreement, true and correct. A certificate signed by or on behalf of any Selling Shareholder as such and delivered to the Representatives or to counsel for the Underwriters shall be deemed coupled with an interest a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby. A certificate delivered by or on behalf of any Selling Shareholder to counsel for the Selling Shareholders for purposes of enabling such counsel to render the opinion referred in Section 10(e) will also be furnished to the Representatives and counsel for the Underwriters and shall be irrevocable subject deemed to Article Vbe additional representations and warranties to the Underwriters by such Selling Shareholder as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Hall Kinion & Associates Inc)
REPRESENTATIONS AND WARRANTIES OF THE SELLING. Stockholders. Each of the Selling Stockholders hereby ------------ Stockholder represents and warrants, jointly but not severally, warrants to the several Underwriters each ------------ Underwriter that:
(a) The Such Selling Stockholder has all right, power and authority to enter into this Agreement, is the Power of Attorney for Sale of Common Stock of Signature Resorts, Inc. (the "Power of Attorney") and the Custody Agreement for Sale of Common Stock of Signature Resorts, Inc. (the "Custody Agreement") and to consummate the transactions contemplated hereby and thereby, including, without limitation, the sale, assignment, transfer and delivery lawful owner of the Common Shares to be sold by the such Selling Stockholder pursuant to this Agreement. Each Agreement and has, and on the Closing Date will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Stockholder has, and on the Power of Attorney Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Custody Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of the such Selling Stockholder and constitutes the valid and binding instrument or agreement of the Selling Stockholder enforceable in accordance with its terms except as such enforceability may be limited by general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generallyStockholder.
(bd) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, except any restrictions, liens, encumbrances, security interests, equities and claims arising out of any act of the Underwriters.
(e) The execution, delivery and performance of the Custody this Agreement and the Power of Attorney by the Selling Stockholder Stockholders, the compliance by such Selling Stockholders with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) requires no actionrequire any consent, consent approval, authorization or approval by or in respect other order of, or filing qualification with, any court or governmental bodybody or agency (except such as may be required under the securities or Blue Sky laws of the various states), agency, official or authority or any individual, corporation, partnership, association, trust or other entity or organization which has not been made or obtained and (ii) does not conflict with or constitute a default under or give rise to any right of termination, cancellation or acceleration breach of any right of the terms or obligation provisions of, or a default under, the organizational documents of such party Selling Stockholder or a loss of any benefit to which such party is entitled under any provision of any material indenture, loan agreement, contract, indenturemortgage, lease or other agreement or instrument binding upon to which such Selling Stockholder is a party or any material license, franchise, permit or other similar authorization held by which such party or result in the creation or imposition of any mortgage, life interest, lien (except as created by such agreements), pledge, charge, security interest, fiduciary assignment, attachment, encumbrance or other adverse claim of any kind in respect of any asset of such party.
(c) The Selling Stockholder has, and immediately prior to the delivery of any Common Shares to the Underwriter will have, good and valid title to the Common Shares to be sold by the Selling Stockholder pursuant to this Agreement, free and clear of all liens, encumbrances, equities or claims or any nature, and full right, power and authority to sell, assign, transfer and deliver such Common Shares, subject only to this Agreement, the Power of Attorney and the Custody Agreement; and upon delivery of such Common Shares and payment therefor pursuant to this Agreement, good and valid title to such Common Shares, free and clear of all liens, encumbrances, equities or claims of any nature will pass to the several Underwriters.
(d) The Selling Stockholder will not, for a period of 90 days after the date of the Prospectus, either directly or indirectly, offer to sell, agree to sell or otherwise sell or dispose of any shares of Common Stock of the Company, any options or warrants to purchase any shares of Common Stock of the Company, or any securities or rights convertible into or exchangeable for shares of Common Stock of the Company, owned either directly or indirectly by the Selling Stockholder or with respect to which the any property of such Selling Stockholder has the power is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of dispositionany court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder, without the prior written consent except such conflict, breach, default or violation described in clauses (ii) through (iii) of ▇▇▇▇▇▇▇▇▇▇ Securities.
this paragraph (e) The ), which would not result in a material adverse effect on such Selling Stockholder has not, in connection with or the sale of the Selling Stockholder's Common Shares to the Underwriters, distributed any offering material other than that permitted by the ActOffering.
(f) The attention of the Selling Stockholder has been directed to the rules of the Commission which prohibit the Selling Stockholder from bidding for or purchasing any shares of the Common Stock of the Company, or attempting to induce anyone else to bid for or purchase such shares, or taking any other action which might tend to stabilize or manipulate the price of the Common Stock, until the distribution of Common Stock pursuant to information in the Registration Statement has been completed. The under the caption "Selling Stockholders" which specifically relates to such Selling Stockholder has not taken does not, and will not takeon the Closing Date, directly contain any untrue statement of a material fact or indirectlyomit to state any material fact required to be stated therein or necessary to make the statements therein, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation the light of the price of any security of the Company to facilitate the sale or resale of the Common Sharescircumstances under which they were made, not misleading.
(g) The At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(f), such Selling Stockholder has duly executed and placed in custody all will notify you of the documents to be delivered to the Custodian pursuant to the Custody Agreement, which documents represent all of the Common Shares to be sold by the Selling Stockholder pursuant to this Agreementsuch change as soon as it is reasonably practicable.
(h) The Each certificate signed by or on behalf of such Selling Stockholder specifically agrees that and delivered to the Common Shares represented by the certificate(s) held in custody Underwriters or counsel for the Selling Stockholder pursuant to the Custody Agreement are subject to the interest of the Company, the Underwriters and all the other Selling Stockholders who may become parties to this Agreement; and, in consideration of those interests, and for the purpose of completing the transactions contemplated by this Agreement and the Power of Attorney, the Power of Attorney, the arrangements made by the Selling Stockholder for such custody, and the appointment by the Selling Stockholder of the Attorney-in-Fact by the Power of Attorney, shall be deemed coupled with an interest to be a representation and shall be irrevocable subject warranty by such Selling Stockholder to Article Vthe Underwriters as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Amerisource Distribution Corp)