Agreements of the Company and the Selling Shareholders. (a) The Company agrees with each of the Underwriters: (i) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after being given a reasonable opportunity to review and comment thereon; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; (ii) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities or Blue Sky laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (iii) As soon as reasonably practicable but in no event later than 5:00 p.m. on the second business day prior to the First Time of Delivery and from time to time, to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request. If at any time when the delivery of a prospectus is required under applicable law and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a). (iv) To make generally available to its shareholders and to deliver to you as soon as practicable, but in any event not later than twelve months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations covering a period of at least 12 months beginning after the effective date of the Registration Statement; (v) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any Common Shares or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of the Representatives; (vi) To not take, 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; (vii) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;” (viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq; (ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares; (x) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations; (xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and (xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter: (i) To deliver to the Representatives prior to the First Time of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations in lieu thereof; (ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement; (iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder; (v) To deliver to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and (vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof to the Representatives. (c) Each Underwriter severally agrees that: (i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and (ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulations.
Appears in 2 contracts
Samples: Underwriting Agreement (Andersons Inc), Underwriting Agreement (Andersons Inc)
Agreements of the Company and the Selling Shareholders. Each of the Company or the Selling Shareholders, as applicable, covenants and agrees with the Underwriter as follows:
(a) The Company agrees will not, either prior to the Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with each sales of the Underwriters:
(i) To prepare Shares by the Prospectus in Underwriter or a form reasonably approved by you and to dealer, file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no any amendment or supplement to the Registration Statement Statement, the Base Prospectus or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Underwriter within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Underwriter shall be disapproved by you promptly after being given a reasonable opportunity to review and comment thereon; to advise younot have objected thereto in good faith.
(b) The Company will notify the Underwriter promptly, promptly after it receives notice thereof, of the time (i) when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and filed, (ii) of any definitive proxy or information statements required to be filed request by the Company with the Commission subsequent for amendments or supplements to the date of Registration Statement or the Prospectus and or for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (iii) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing ProspectusProspectus or the initiation of any proceedings for that purpose or the threat thereof, (iv) of the suspension happening of any event during the period mentioned in the third sentence of Section 5(e) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus untrue or for additional information; andthat requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the event light of the issuance circumstances in which they are made, not misleading, and (v) of receipt by the Company or any representative or attorney of the Company of any stop order other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or of the Prospectus. If at any time the Commission shall issue any order preventing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualificationProspectus, promptly to use its best efforts the Company will make every reasonable effort to obtain the withdrawal of such orderorder at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Underwriter promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Underwriter, without charge, one electronically-signed copy of each of the Registration Statement and of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) So long as delivery of a prospectus by the Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations), the Company will deliver to the Underwriter, without charge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Underwriter may reasonably request. The Company and the Selling Shareholders consent to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any amendment or supplement thereto by the Underwriter and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Underwriter should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Underwriter, without charge, such number of copies of such supplement or amendment to the Prospectus as the Underwriter may reasonably request. The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriter, if such document would be deemed to be incorporated by reference into the Prospectus, unless prior notice thereof is provided to the Underwriter. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts conflicted or would conflict with the information contained in the Registration Statement, the Time of Sale Disclosure Package Pricing Prospectus or the Prospectus or included, includes included or would include an untrue statement of a material fact or omitted, omits omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and Underwriter and, if requested by the Underwriter, will promptly amend or supplement supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission;.
(iif) Promptly from time Prior to time any public offering of the Shares, the Company will cooperate with the Underwriter and counsel to take such action as you may reasonably request to qualify the Underwriter in connection with the registration or qualification of the Shares for offering offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as you the Underwriter may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, request; provided, that in connection therewith no event shall the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to file a take any action that would subject it to general consent to service of process in any jurisdiction;
(iii) As soon as reasonably practicable but in no event later than 5:00 p.m. on the second business day prior to the First Time of Delivery and from time to time, to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request. If at any time when the delivery of a prospectus jurisdiction where it is required under applicable law and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a)now so subject.
(ivg) To The Company will, so long as required under the Rules and Regulations, furnish or make generally available using the XXXXX filing system of the Commission, to its shareholders and to deliver to you as soon as practicablepracticable after the end of each fiscal year an annual report (including a balance sheet and statements of income, but in any event not later than twelve months shareholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earnings statement of the Company and the Subsidiaries (which need not be auditedaudited but shall be in reasonable detail) complying with covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Securities Act and (including Rule 158 of the Rules and Regulations covering a period Regulations). For the purpose of at least 12 months beginning the preceding sentence, “Availability Date” means the 45th day after the effective date end of the Registration Statement;
(v) During fourth fiscal quarter following the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose offiscal quarter that includes such Effective Date, except as provided hereunder, any securities that if such fourth fiscal quarter is the last quarter of the Company that are substantially similar to the Shares, including but not limited to any Common Shares or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than pursuant to the Company’s benefit plans existing onfiscal year, or upon “Availability Date” means the conversion or exchange of convertible or exchangeable securities outstanding as of, 90th day after the date of this Agreement), without the prior written consent of the Representatives;
(vi) To not take, 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;
(vii) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment end of such fee pursuant to Rule 111(b) of the Rules and Regulations;
(xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectusfourth fiscal quarter.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the First Time of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof to the Representatives.
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulations.
Appears in 2 contracts
Samples: Underwriting Agreement (Cimatron LTD), Underwriting Agreement (Cimatron LTD)
Agreements of the Company and the Selling Shareholders. The ------------------------------------------------------ Company and the Selling Shareholders (as to Sections 5(i), (j), (n), (o), (p) and (q)) agree, severally and not jointly, with the several Under- writers as follows:
(a) The Company agrees will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with each sales of the Underwriters:
(i) To prepare the Prospectus in a form reasonably approved Shares by you and to an Underwriter or dealer, file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Representatives shall be disapproved by you promptly after being given a reasonable opportunity not have objected thereto in good faith.
(b) The Company will use its best efforts to review cause the Registration Statement to become effective, and comment thereon; to advise youwill notify the Representatives promptly, promptly after it receives notice thereofand will confirm such advice in writing, of (1) when the time Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (2) of any request by the Commission for amendments or supplements to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (3) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Regis- tration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (4) of the suspension happening of any event during the period mentioned in the second sentence of Section 5(e) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use Prospectus untrue or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained changes in the Registration Statement, the Time of Sale Disclosure Package Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading and (5) of receipt by the Company or any representative of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. The Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 430A and to notify the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without charge, two signed copies of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Representatives, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the Company will deliver to each of the Underwriters, without charge, as many copies of the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be deliv- ered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances prevailing at that subsequent timeunder which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will promptly notify forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies thereof as the Representatives may reasonably request.
(f) Prior to any public offering of the Shares by the Underwriters, the Company will cooperate with the Representatives and will promptly amend counsel to the Underwriters in connection with the registration or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission;
(ii) Promptly from time to time to take such action as you may reasonably request to qualify qualification of the Shares for offering offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, request; provided, that in connection therewith no event shall the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to file a take any action which would subject it to general consent to service of process in any jurisdiction;jurisdiction where it is not now so subject.
(iiig) As During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and each other Underwriter who may so request copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its securities as soon as reasonably may be practicable but in no event later than 5:00 p.m. on the second business last day prior of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after the Effective Date, and satisfying the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and the Selling Shareholders, jointly and severally, will pay, or reimburse if paid by the Representatives, all costs and expenses incident to the First Time performance of Delivery the obligations of the Company and from time the Selling Shareholders under this Agreement, including but not limited to timecosts and expenses of or relating to (1) the preparation, to furnish the Underwriters with written, executed printing and electronic copies filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Prospectus at and any amendment or supplement to the Registration Statement or the Prospectus, (2) the preparation and delivery of certificates representing the Shares, (3) the printing of this Agreement, the Agreement Among Under- writers, any Dealer Agreements, any Underwriters' Questionnaire and the Agreement and Power of Attorney, (4) furnishing (including costs of shipping, mailing and courier) such locations copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (5) the listing of the Shares by the [Nasdaq National Market], (6) any filings required to be made by the Underwriters with the NASD, and the fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (7) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such quantities as you may from time jurisdictions designated pursuant to time Section 5(f), including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (8) counsel to the Company and counsel to the Selling Shareholders, (9) the transfer agent for the Shares and (10) the Accountants.
(j) If this Agreement shall be terminated by the Company or the Selling Shareholders pursuant to any of the provisions hereof (otherwise than pursuant to Section 9) or if for any reason the Company or any Selling Shareholder shall be unable to perform its obligations hereunder, the Company and the Selling Shareholders, jointly and severally, will reimburse the several Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of counsel to the Underwriters) reasonably request. If incurred by them in connection herewith.
(k) The Company will not at any time when time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the delivery price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds."
(m) The Company will not, and will cause each of its executive officers, directors and each beneficial owner of more than 5% of the outstanding shares of Common Stock to enter into agreements with the Representatives in the form set forth in Exhibit C to the effect that they will not, for a prospectus period of 150 days after the commencement of the public offering of the Shares, without the prior written consent of PaineWebber Incorporated, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares (other than pursuant to employee stock option plans or in connection with other employee incentive compensation arrangements).
(n) The Selling Shareholders will not, for a period of 150 days after the commencement of the public offering of the Shares, without the prior written consent of PaineWebber Incorporated, sell, contract to sell or otherwise dispose of any shares of Common Stock, other than pursuant to bona fide gifts to persons who agree in writing with PaineWebber Incorporated to be bound by the provisions of this Section 5(n).
(o) The Selling Shareholders will not, without the prior written consent of PaineWebber Incorporated, make any bid for or purchase any shares of Common Stock during the [120]-day period following the date hereof.
(p) As soon as any Selling Shareholder is required under applicable law advised thereof, such Selling Shareholder will advise PaineWebber Incorporated and if at confirm such time advice in writing, (1) of receipt by such Selling Shareholder, or by any representative of such Selling Shareholder, of any communication from the Commission relating to the Registration Statement, the Prospectus or any preliminary prospectus, or any notice or order of the Commission relating to the Company or any of the Selling Shareholders in connection with the transactions contemplated by this Agreement and (2) of the happening of any event shall have occurred as a result during the period from and after the Effective Date that in the judgment of which such Selling Shareholder makes any statement made in the Registration Statement or the Prospectus as then amended untrue or supplemented would include an untrue statement that requires the making of a material fact any changes in the Registration Statement or omit to state any material fact necessary the Prospectus in order to make the statements therein, in light of the circumstances under in which they were made when such Prospectus is deliveredmade, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a).
(ivq) To make generally available to its shareholders and to The Selling Shareholders will deliver to you as soon as practicable, but in any event not later than twelve months after the effective date of the Registration Statement, an earnings statement of the Company PaineWebber Incorporated and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(v) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any Common Shares or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the Managers prior written consent of the Representatives;
(vi) To not take, 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;
(vii) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations;
(xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the First Time of Delivery, Effective Date a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof to the Representatives).
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulations.
Appears in 1 contract
Agreements of the Company and the Selling Shareholders. (a) The Company covenants and agrees with each of the Underwritersseveral Underwriters as follows:
(i) To prepare The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) connection with sales of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this AgreementShares by an Underwriter or dealer, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no file any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Underwriters within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Underwriters shall be disapproved by you promptly after being given a reasonable opportunity not have objected thereto in good faith.
(ii) The Company will use its best efforts to review cause the Registration Statement to become effective, and comment thereon; to advise youwill notify the Underwriters promptly, promptly after it receives notice thereof, of and will confirm such advice in writing,
(A) when the time Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (B) of any request by the Commission for amendments or supplements to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (C) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (D) of the suspension happening of any event during the period mentioned in the second sentence of Section 5(a)(v) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use Prospectus untrue or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained changes in the Registration Statement, the Time of Sale Disclosure Package Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing in which they are made, not misleading and (E) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at that subsequent any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and notify the Underwriters promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(iii) The Company will furnish to each Representative, without charge, one signed copy of each of the Registration Statement and of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Underwriters, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
(iv) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(v) On the Effective Date, and thereafter from time to time, the Company will deliver to each of the Underwriters, without charge, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will promptly notify forthwith prepare and duly file with the Representatives Commission an appropriate supplement or amendment thereto, and will promptly amend deliver to each of the Underwriters, without charge, such number of copies of such supplement or supplement amendment to the Prospectus as the Underwriters may reasonably request. The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such Issuer Free Writing Prospectus document would be deemed to eliminate or correct such conflictbe incorporated by reference into the Prospectus, untrue statement or omission;that is not approved by the Underwriters after reasonable notice thereof.
(iivi) Promptly from time Prior to time any public offering of the Shares, the Company will cooperate with the Underwriters and counsel to take such action as you may reasonably request to qualify the Underwriters in connection with the registration or qualification of the Shares for offering offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Underwriters may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, request; provided, that in connection therewith no event shall the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to file a take any action which would subject it to general consent to service of process in any jurisdiction;
(iii) As soon as reasonably practicable but in no event later than 5:00 p.m. on the second business day prior to the First Time of Delivery and from time to time, to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request. If at any time when the delivery of a prospectus jurisdiction where it is required under applicable law and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a)now so subject.
(ivvii) To make generally available The Company will, so long as required under the Rules and Regulations, furnish to its shareholders and to deliver to you as soon as practicablepracticable after the end of each fiscal year an annual report (including a balance sheet and statements of income, but in any event not later than twelve months shareholders' equity and cash flow of the Company and its consolidated subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), an earnings statement consolidated summary financial information of the Company and its subsidiaries, if any, for such quarter in reasonable detail.
(viii) During the Subsidiaries period of five years commencing on the Effective Date, the Company will furnish to the Underwriters copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Underwriters a copy of each annual or other report it shall be required to file with the Commission.
(ix) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the Availability Date (as defined below) an earnings statement (which need not be auditedaudited but shall be in reasonable detail) complying with covering a period of 12 months commencing after the Effective Date which will satisfy the provisions of Section 11(a) of the Securities Act and (including Rule 158 of the Rules and Regulations covering a period Regulations). For the purpose of at least 12 months beginning the preceding sentence, "Availability Date" means the 45th day after the effective date end of the Registration Statement;fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is the last quarter of the Company's fiscal year, "Availability Date" means the 90th day after the end of such fourth fiscal quarter.
(vx) The Company will not at any time, directly or indirectly, take any action designed or which might reasonably be expected to cause or result in, or which will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(xi) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds."
(xii) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus Prospectus, without the prior written consent of Xxxxxxx & Company, Inc., the Company will not (the “Lock-Up Period”), to not, directly or indirectly, 1) offer, sell, offer to sell, contract to sell, pledge, grant any option options, warrants or rights to purchase purchase, or otherwise sell or dispose of, except as provided hereunder, of any equity securities of the Company that are substantially similar to the Shares, including but not limited to any Common Shares or any other capital stock of the Company or any other securities that are convertible into or exchangeable for, for its Common Stock or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities equity security (other than pursuant to employee stock option plans disclosed in the Company’s benefit plans existing on, Prospectus or upon pursuant to the conversion or exchange of convertible securities or exchangeable securities the exercise of warrants in each case outstanding as of, on the date of this Agreement), or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise.
(xiii) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of Xxxxxxx & Company, Inc., grant options to purchase shares of Common Stock at a price less than the Representatives;initial public offering price. During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of Xxxxxxx & Company, Inc.
(vixiv) To not takeThe Company will cause each of its officers, directly directors and certain Shareholders designated by the Underwriters to, enter into lock-up agreements with the Underwriters to the effect that they will not, without the prior written consent of Xxxxxxx & Company, Inc., sell, contract to sell or indirectly, otherwise dispose of any action designed shares of Common Stock or rights to or that could reasonably be expected acquire such shares according to cause or result in any stabilization or manipulation of the price of the Shares;
(vii) To apply the net proceeds from the sale of the Shares for the purposes terms set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations;
(xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keepingSchedule III hereto.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriterthe several Underwriters as follows:
(i) To deliver Such Selling Shareholder will enter into a lock-up agreement with the Underwriters to the Representatives effect that such Selling Shareholder will not, without the prior written consent of the Underwriters, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares during the period commencing on the date hereof and continuing until the date that is 90 days after the date of the Prospectus, other than according to the First Time of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations terms set forth in lieu thereof;Schedule III hereto.
(ii) To notify promptly Such Selling Shareholder will not at any time, directly or indirectly, take any action designed or which might reasonably be expected to cause or result in, or which will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(c) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and, unless otherwise paid by the Company, the Selling Shareholders will pay or reimburse if paid by the Underwriters, in such proportions as they may agree upon themselves, all costs and expenses incident to the performance of the obligations of the Company and the Representatives ifSelling Shareholders under this Agreement and in connection with the transactions contemplated hereby, at including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, Prospectus and any time prior amendment or supplement to the date on which Registration Statement or Prospectus, (ii) the distribution preparation and delivery of certificates representing the Shares as contemplated herein Shares, (iii) the printing of this Agreement, the Agreement Among Underwriters, any Selected Dealer Agreements, any Underwriters' Questionnaires, the Shareholders' Agreements, any Underwriters' Powers of Attorney, and in the Prospectus has been completedany invitation letters to prospective Underwriters, as determined by the Representatives, (iv) furnishing (including costs of shipping and mailing) such Selling Shareholder has knowledge copies of the occurrence of any event as a result of which the Prospectus or the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make connection with the statements therein, in light offering and sale of the circumstances Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the listing of the Shares on the NNM, (vi) any filings required to be made by the Underwriters with the NASD, and the fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (vii) the registration or qualification of the Shares for offer and sale under which they were madethe securities or Blue Sky laws of such jurisdictions designated pursuant to Section 5(f), not misleading;
(iii) To cooperate including the fees, disbursements and other charges of counsel to the extent necessary Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (viii) fees, disbursements and other charges of counsel to cause the Registration Statement or any post-effective amendment thereto to become effective at Company (but not those of counsel for the earliest possible time Underwriters, except as otherwise provided herein) and to do and perform all things (ix) the transfer agent for the Shares. The Underwriters may deem the Company to be done the primary obligor with respect to all costs, fees and performed expenses to be paid by the Company and by the Selling Shareholders. The Selling Shareholders will pay (directly or by reimbursement) all fees and expenses incident to the performance of their obligations under this Agreement prior that are not otherwise specifically provided for herein, including but not limited to any fees and expenses of counsel for such Selling Shareholders, any fees and expenses of the Attorneys-in-Fact and the Custodian, and all expenses and taxes incident to the applicable Time of Delivery sale and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver Shareholders to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof to the RepresentativesUnderwriters hereunder.
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulations.
Appears in 1 contract
Agreements of the Company and the Selling Shareholders. Each of the Company and the Selling Shareholders respectively covenants and agrees with the several Underwriters as follows:
(a) The Company agrees will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with each sales of the Underwriters:
(i) To prepare the Prospectus in a form reasonably approved Shares by you and to an Underwriter or dealer, file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Representatives shall be disapproved by you promptly after being given a reasonable opportunity not have objected thereto in good faith.
(b) The Company will use its best efforts to review cause the Registration Statement to become effective, and comment thereon; to advise youwill notify the Representatives promptly, promptly after it receives notice thereofand will confirm such advice in writing, of (i) when the time Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (iii) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (iv) of the suspension happening of any event during the period mentioned in the second sentence of Section 5(e) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use Prospectus untrue or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained changes in the Registration Statement, the Time of Sale Disclosure Package Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing in which they are made, not misleading and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at that subsequent timeany time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and notify the Representatives promptly of all such filings.
(c) The Company will furnish to each Representative, without charge, one signed copy of each of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Representatives, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time during such period as a prospectus is required by law to be delivered in connection with offers and sales of Shares by an underwriter or dealer, the Company will deliver to each of the Underwriters, without charge, as many copies of the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the reasonable judgment of counsel to the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will promptly notify forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies of such supplement or amendment to the Prospectus as the Representatives may reasonably request.
(f) Prior to any public offering of the Shares, the Company will cooperate with the Representatives and will promptly amend counsel to the Underwriters in connection with the registration or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission;
(ii) Promptly from time to time to take such action as you may reasonably request to qualify qualification of the Shares for offering offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, request; provided, that in connection therewith no event shall the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to file a take any action which would subject it to general consent to service of process in any jurisdiction;jurisdiction where it is not now so subject.
(iiig) As soon The Company will, so long as reasonably practicable but in no event later than 5:00 p.m. on the second business day prior to the First Time of Delivery and from time to time, to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request. If at any time when the delivery of a prospectus is required under applicable law the Rules and if at such Regulations, furnish to its shareholders within the time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a).
such Rules and Regulations an annual report (ivincluding a balance sheet and statements of income, shareholders' equity and cash flow of the Company, if any, certified by independent public accountants) To make generally available to its shareholders and to deliver to you and, as soon as practicable, but in any event not later than twelve months practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company, if any, for such quarter in reasonable detail.
(h) During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and each other Underwriter who may so request in writing copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the Commission.
(i) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement of the Company and the Subsidiaries (which need not be auditedaudited but shall be in reasonable detail) complying with for a period of 12 months ended commencing after the Effective Date, and satisfying the provisions of Section 11(a) of the Securities Act and (including Rule 158 of the Rules and Regulations covering a period Regulations).
(j) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and, unless otherwise paid by the Company, the Selling Shareholders will pay or reimburse if paid by the Representatives, in such proportions as they may agree upon themselves, all costs and expenses incident to the performance of at least 12 months beginning after the effective date obligations of the Company and the Selling Shareholders under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, Prospectus and any amendment or supplement to the Registration Statement or Prospectus, (ii) the preparation and delivery of certificates representing the Shares, (iii) the printing of this Agreement, the Agreement Among Underwriters, any Selected Dealer Agreements, any Underwriters' Questionnaires, the Shareholders' Agreements, any Underwriters' Powers of Attorney, and any invitation letters to prospective Underwriters, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement;, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the listing of the Shares on the NNM, (vi) any filings required to be made by the Underwriters with the NASD, and the fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (vii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 5(f), including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (viii) fees, disbursements and other charges of counsel to the Company (but not those of counsel for the Underwriters, except as otherwise provided in this Section 5(j)) and (ix) the transfer agent for the Shares. The Underwriters may deem the Company to be the primary obligor with respect to all costs, fees and expenses to be paid by the Company and by the Selling Shareholders. The Selling Shareholders will pay (directly or by reimbursement) all fees and expenses incident to the performance of their obligations under this Agreement that are not otherwise specifically provided for herein, including but not limited to any fees and expenses of counsel for such Selling Shareholders, any fees and expenses of the Attorneys-in-Fact and the Custodian, and all expenses and taxes incident to the sale and delivery of the Shares to be sold by such Selling Shareholders to the Underwriters hereunder.
(vk) The Company will not at any time, directly or indirectly, take any action designed or which might reasonably be expected to cause or result in, or which will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds."
(m) During the period beginning from the date hereof and continuing to and including the date 90 180 days after the date of the Prospectus (the “Lock-Up Period”), to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any Common Shares or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement)Prospectus, without the prior written consent of Xxxxxxx & Company, Inc., the Representatives;
(vi) To Company will not takeoffer, directly sell, contract to sell, grant options to purchase or indirectly, otherwise dispose of any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price Company's equity securities of the Shares;
Company or any other securities convertible into or exchangeable with its Common Stock or other equity security (vii) To apply other than pursuant to employee stock option plans or the net proceeds from conversion of convertible securities or the sale exercise of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, warrants outstanding on the date of this Agreement).
(n) During the period of 180 days after the date of the Prospectus, and shall the Company will not, without the prior written consent of Xxxxxxx & Company, Inc., grant options to purchase shares of Common Stock at a price less than the time initial public offering price. During the period of filing either pay to 180 days after the date of the Prospectus, the Company will not file with the Commission the filing fee for the Rule 462(bor cause to become effective any registration statement (other than on Form S-8) Registration Statement or give irrevocable instructions for the payment of such fee pursuant relating to Rule 111(b) of the Rules and Regulations;
(xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company without the prior written consent of Xxxxxxx & Company, Inc.
(o) The Selling Shareholders will, and the RepresentativesCompany will cause each of its officers, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to directors and certain shareholders designated by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulationsto, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the First Time of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver to the Representatives on or prior to the date of this Agreement the enter into lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict agreements with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof Representatives to the Representatives.
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter effect that they will not, without the prior written consent of the Company (Xxxxxxx & Company, Inc., sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior shares according to the use of such free writing prospectus and (B) “issuer information,” as used terms set forth in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and RegulationsSchedule III hereto.
Appears in 1 contract
Samples: Underwriting Agreement (Quantum Epitaxial Designs Inc)
Agreements of the Company and the Selling Shareholders. Each of the Company and the Selling Shareholders severally covenants and agrees with the several Underwriters as follows:
(a) The Company agrees will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with each sales of the Underwriters:
(i) To prepare the Prospectus in a form reasonably approved Shares by you and to an Underwriter or dealer, file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Representatives shall be disapproved by you promptly after being given a reasonable opportunity not have objected thereto in good faith.
(b) The Company will use its best efforts to review cause the Registration Statement to become effective, and comment thereon; to advise youwill notify the Representatives promptly, promptly after it receives notice thereofand will confirm such advice in writing, of (i) when the time Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (iii) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (iv) of the suspension happening of any event during the period mentioned in the second sentence of Section 5(e) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use Prospectus untrue or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained change in the Registration Statement, the Time of Sale Disclosure Package Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent timein which they are made, not misleadingmisleading and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Company will promptly notify Registration Statement, any preliminary prospectus or the Representatives and will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission;
(ii) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities or Blue Sky laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(iii) As soon as reasonably practicable but in no event later than 5:00 p.m. on the second business day prior to the First Time of Delivery and from time to time, to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably requestProspectus. If at any time when the delivery of a prospectus is required under applicable law and if at such time Commission shall issue any event shall have occurred as a result of which order suspending the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a).
(iv) To make generally available to its shareholders and to deliver to you as soon as practicable, but in any event not later than twelve months after the effective date effectiveness of the Registration Statement, an earnings statement of the Company and will make every reasonable effort to obtain the Subsidiaries (which need not be audited) complying with Section 11(a) withdrawal of such order at the Securities Act and earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 158 430A of the Rules and Regulations covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(v) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”)Regulations, to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to will comply with the Shares, including but not limited to any Common Shares or any other capital stock provisions of and make all requisite filings with the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than Commission pursuant to said Rule 430A and notify the Company’s benefit plans existing on, or upon the conversion or exchange Representatives promptly of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of the Representatives;
(vi) To not take, 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;
(vii) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) all such filings. If the Company elects to rely upon Rule 462(b) of under the Rules and RegulationsAct, to the Company shall file a registration statement under Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m.P.M., Washington, Washington D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the such Rule 462(b) Registration Statement registration statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations;.
(xic) To The Company will furnish to each Representative, without charge, one signed copy of each of the Registration Statement and of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Representatives, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the First Time of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the Time Company will deliver to each of Sale Disclosure Package or the Underwriters, without charge, as many copies of the Prospectus or would include an untrue statement any amendment or supplement thereto as the Representatives may reasonably request. The Company consents to the use of a material fact the Prospectus or omit any amendment or supplement thereto by the several Underwriters and by all dealers to state whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any material fact necessary period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make the statements any statement therein, in the light of the circumstances then prevailingunder which it was made, not misleading, or if it is necessary to supplement or amend the Selling Shareholder Prospectus to comply with law, the Company will give prompt forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies of such supplement or amendment to the Prospectus as the Representatives may reasonably request. The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representatives after reasonable notice thereof thereof.
(f) Prior to any public offering of the Shares, the Company will cooperate with the Representatives and counsel to the Underwriters in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as required under the Rules and Regulations, upon the request of the Representatives and each other Underwriter, furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, shareholders' equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), make available consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) During the period of three years commencing on the Effective Date, the Company will furnish to the Representatives, upon request, and each other Underwriter who may so request copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the Commission.
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date, which will satisfy the provisions of Section 11(a) of the Act (including Rule 433 158 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 ). For the purpose of the Rules and Regulations) used or referred to by such Underwriter without preceding sentence, "Availability Date" means the prior consent 45th day after the end of the Company (any fourth fiscal quarter following the fiscal quarter that includes such issuer information with respect to whose use Effective Date, except that if such fourth fiscal quarter is the Company has given its consentlast quarter of the Company's fiscal year, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by "Availability Date" means the Company with 90th day after the Commission prior to the use end of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulationsfourth fiscal quarter.
Appears in 1 contract
Samples: Underwriting Agreement (White Electronic Designs Corp)
Agreements of the Company and the Selling Shareholders. The Company and the Selling Shareholders (as to Sections (j), (o), (p), (q) and (r) only) agree, severally and not jointly, with the several Underwriters as follows:
(a) The Company agrees will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with each sales of the Underwriters:
(i) To prepare the Prospectus in a form reasonably approved Shares by you and to an Underwriter or dealer, file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Representatives shall be disapproved by you promptly after being given a reasonable opportunity not have objected thereto in good faith.
(b) The Company will use its best efforts to review cause the Registration Statement to become effective, and comment thereon; to advise youwill notify the Representatives promptly, promptly after it receives notice thereofand will confirm such advice in writing, of (1) when the time Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (2) of any request by the Commission for amendments or supplements to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (3) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (4) of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening happening of any proceeding for any such purpose, or of any request by event during the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, period mentioned in the event second sentence of the issuance Section 5(e) that makes any statement of any stop order or of any order preventing or suspending the effectiveness of a material fact made in the Registration Statement or the use Prospectus untrue or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained changes in the Registration Statement, the Time of Sale Disclosure Package Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading and (5) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. The Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 430A and to notify the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without charge, two signed copies of the Registration Statement and of any post-effective amendment thereto and will furnish to the Representatives, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the Company will deliver to each of the Underwriters, without charge, as many copies of the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement of a material fact therein, in the light of the circumstances prevailing at that subsequent timeunder which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will promptly notify forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies thereof as the Representatives may reasonably request.
(f) Prior to any public offering of the Shares by the Underwriters, the Company will cooperate with the Representatives and will promptly amend counsel to the Underwriters in connection with the registration or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission;
(ii) Promptly from time to time to take such action as you may reasonably request to qualify qualification of the Shares for offering offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, request; provided, that in connection therewith no event shall the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to file a take any action which would subject it to general consent to service of process in any jurisdiction;jurisdiction where it is not now so subject.
(iiig) As During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and each other Underwriter who may so request copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its securities as soon as reasonably may be practicable but in no event later than 5:00 p.m. on the second business last day prior to the First Time of Delivery and from time to time, to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and fifteenth full calendar month following the Prospectus at such locations and calendar quarter in such quantities as you may from time to time reasonably request. If at any time when the delivery of a prospectus is required under applicable law and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a).
(iv) To make generally available to its shareholders and to deliver to you as soon as practicable, but in any event not later than twelve months after the effective date of the Registration StatementEffective Date falls, an earnings statement of the Company and the Subsidiaries (which need not be auditedaudited but shall be in reasonable detail) complying with for a period of 12 months ended commencing after the Effective Date, and satisfying the provisions of Section 11(a) of 11(a)of the Securities Act and (including Rule 158 of the Rules and Regulations covering a period of at least 12 months beginning after Regulations).
(i) Whether or not the effective date transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay, or reimburse if paid by the Representatives, all costs and expenses incident to the performance of the Registration Statement;
(v) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities obligations of the Company that are substantially similar to and the SharesSelling Shareholders under this Agreement and in connection with the transactions contemplated hereby, including but not limited to any Common Shares costs and expenses of or any other capital stock relating to (1) the preparation, printing and filing of the Company Registration Statement and exhibits to it, each preliminary prospectus, the Prospectus and any amendment or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than pursuant supplement to the Company’s benefit plans existing onRegistration Statement or the Prospectus, or upon (2) the conversion or exchange preparation and delivery of convertible or exchangeable securities outstanding as ofcertificates representing the Shares, (3) the date word processing, printing and reproduction of this Agreement), without the prior written consent Agreement Among Underwriters, any Dealer Agreements and any Underwriters' Questionnaire, (4) furnishing (including costs of shipping, mailing and courier) such copies of the Representatives;
(vi) To not takeRegistration Statement, directly or indirectlythe Prospectus and any preliminary prospectus, any action designed to or that could reasonably and all amendments and supplements thereto, as may be expected to cause or result requested for use in any stabilization or manipulation of connection with the price of the Shares;
(vii) To apply the net proceeds from the offering and sale of the Shares for by the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
Underwriters or by dealers to whom Shares may be sold, (viii5) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
the New York Stock Exchange, (ix6) To maintainany filings required to be made by the Underwriters with the NASD, at its expenseand the fees, a registrar disbursements and other charges of counsel for the Underwriters in connection therewith, (7) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 5(f), including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (8) counsel to the Company and counsel to the Selling Shareholders, (9) the transfer agent for the Common Shares;
(x) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations;
(xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the First Time of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof to the Representatives.
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c10), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Aquapenn Spring Water Company Inc)
Agreements of the Company and the Selling Shareholders. Each of the Company and the Selling Shareholders respectively covenants and agrees with the several Underwriters as follows:
(a) The Company agrees will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with each sales of the Underwriters:
(i) To prepare the Prospectus in a form reasonably approved Shares by you and to an Underwriter or dealer, file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Representatives shall be disapproved by you promptly after being given a reasonable opportunity not have objected thereto in good faith.
(b) The Company will use its best efforts to review cause the Registration Statement to become effective, and comment thereon; to advise youwill notify the Representatives promptly, promptly after it receives notice thereofand will confirm such advice in writing, of (i) when the time Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (iii) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (iv) of the suspension happening of any event during the period mentioned in the second sentence of Section 5(e) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use Prospectus untrue or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained changes in the Registration Statement, the Time of Sale Disclosure Package Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing in which they are made, not misleading and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at that subsequent any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and notify the Representatives promptly of all such filings.
(c) The Company will furnish to each Representative, without charge, one signed copy of each of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Representatives, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the Company will deliver to each of the Underwriters, without charge, as many copies of the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will promptly notify forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies of such supplement or amendment to the Prospectus as the Representatives may reasonably request.
(f) Prior to any public offering of the Shares, the Company will cooperate with the Representatives and will promptly amend counsel to the Underwriters in connection with the registration or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission;
(ii) Promptly from time to time to take such action as you may reasonably request to qualify qualification of the Shares for offering offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, request; provided, that in connection therewith no event shall the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to file a take any action which would subject it to general consent to service of process in any jurisdiction;
(iii) As soon as reasonably practicable but in no event later than 5:00 p.m. on the second business day prior to the First Time of Delivery and from time to time, to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request. If at any time when the delivery of a prospectus jurisdiction where it is required under applicable law and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a)now so subject.
(ivg) To make generally available The Company will, so long as required under the Rules and Regulations, furnish to its shareholders and to deliver to you as soon as practicablepracticable after the end of each fiscal year an annual report (including a balance sheet and statements of income, but in any event not later than twelve months Shareholders' equity and cash flow of the Company and its consolidated subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and each other Underwriter who may so request copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the Commission.
(i) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement of the Company and the Subsidiaries (which need not be auditedaudited but shall be in reasonable detail) complying with for a period of 12 months ended commencing after the Effective Date, and satisfying the provisions of Section 11(a) of the Securities Act and (including Rule 158 of the Rules and Regulations covering a period Regulations).
(j) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and, unless otherwise paid by the Company, the Selling Shareholders will pay or reimburse if paid by the Representatives, in such proportions as they may agree upon themselves, all costs and expenses incident to the performance of at least 12 months beginning after the effective date obligations of the Company and the Selling Shareholders under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, Prospectus and any amendment or supplement to the Registration Statement or Prospectus, (ii) the preparation and delivery of certificates representing the Shares, (iii) the printing of this Agreement, the Agreement Among Underwriters, any Selected Dealer Agreements, any Underwriters' Questionnaires, the Shareholders' Agreements, any Underwriters' Powers of Attorney, and any invitation letters to prospective Underwriters, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement;, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the listing of the Shares on the NNM, (vi) any filings required to be made by the Underwriters with the NASD, and the fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (vii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 5(f), including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (viii) fees, disbursements and other charges of counsel to the Company (but not those of counsel for the Underwriters, except as otherwise provided herein) and (ix) the transfer agent for the Shares. The Underwriters may deem the Company to be the primary obligor with respect to all costs, fees and expenses to be paid by the Company and by the Selling Shareholders. The Selling Shareholders will pay (directly or by reimbursement) all fees and expenses incident to the performance of their obligations under this Agreement that are not otherwise specifically provided for herein, including but not limited to any fees and expenses of counsel for such Selling Shareholders, any fees and expenses of the Attorneys-in-Fact and the Custodian, and all expenses and taxes incident to the sale and delivery of the Shares to be sold by such Selling Shareholders to the Underwriters hereunder.
(vk) The Company will not at any time, directly or indirectly, take any action designed or which might reasonably be expected to cause or result in, or which will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds" and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(m) During the period beginning from the date hereof and continuing to and including the date 90 180 days after the date of the Prospectus (the “Lock-Up Period”), to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any Common Shares or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement)Prospectus, without the prior written consent of Xxxxxxx & Company, Inc., the Representatives;
(vi) To Company will not takeoffer, directly sell, contract to sell, grant options to purchase or indirectly, otherwise dispose of any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price Company's equity securities of the Shares;
Company or any other securities convertible into or exchangeable with its Common Stock or other equity security (vii) To apply other than pursuant to employee stock option plans or the net proceeds from conversion of convertible securities or the sale exercise of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, warrants outstanding on the date of this Agreement).
(n) During the period of 180 days after the date of the Prospectus, the Company will not, without the prior written consent of Xxxxxxx & Company, Inc., grant options to purchase shares of Common Stock at a price less than the initial public offering price. During the period of 180 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of Xxxxxxx & Company, Inc.
(o) The Selling Shareholders will, and shall at the time Company will cause each of filing either pay its officers, directors and certain Shareholders designated by the Representatives to, enter into lock-up agreements with the Representatives to the Commission effect that they will not, without the filing fee for prior written consent of Xxxxxxx & Company, Inc., sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares according to the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations;terms set forth in Schedule III hereto.
(xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xiip) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing file with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver any registration statement on Form S-8 relating to the Representatives shares of its Common Stock prior to 90 days after the First Time effective date of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof to the Representatives.
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulations.
Appears in 1 contract
Agreements of the Company and the Selling Shareholders. The Company and the Selling Shareholders agree, severally and not jointly, with the several Underwriters as follows:
(a) The Company agrees will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with each sales of the Underwriters:
(i) To prepare the Prospectus in a form reasonably approved Shares by you and to an Underwriter or dealer, file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Representatives shall be disapproved by you promptly after being given a reasonable opportunity not have objected thereto in good faith.
(b) The Company will use its best efforts to review cause the Registration Statement to become effective, and comment thereon; to advise youwill notify the Representatives promptly, promptly after it receives notice thereofand will confirm such advice in writing, of (1) when the time Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (2) of any request by the Commission for amendments or supplements to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (3) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (4) of the suspension happening of any event during the period mentioned in the second sentence of Section 7(e) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use Prospectus untrue or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained changes in the Registration Statement, the Time of Sale Disclosure Package registration Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent timein which they are made, not misleading, and (5) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will promptly make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Rules and Regulations, the Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without charge, two signed copies of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, and will promptly amend or supplement such Issuer Free Writing Prospectus furnish to eliminate or correct such conflictthe Representatives, untrue statement or omission;without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits.
(iid) Promptly The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time time, the Company will deliver to take such action each of the Underwriters, without charge, as you many copies of the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request request. The Company consents to qualify the use of the Prospectus or any amendment thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, in light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies thereof as the Representatives may reasonably request.
(f) Prior to any public offering of the Shares by the Underwriters, the Company will cooperate with the Representatives and counsel to the Underwriters in connection with the registration or qualification of the Shares for offering offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, request; provided, that in connection therewith no event shall the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to file a take any action which would subject it to general consent to service of process in any jurisdiction;jurisdiction where it is not now so subject.
(iiig) As During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and each other Underwriter who may so request copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its securities as soon as reasonably may be practicable but in no event later than 5:00 p.m. on the second business last day prior of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after the Effective Date, and satisfying the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and the Selling Shareholders, in such proportions (aggregating 100%) as they may agree upon among themselves, will pay, or reimburse if paid by the Representatives, all costs and expenses incident to the First Time performance of Delivery the obligations of the Company and from time the Selling Shareholders under this Agreement, including but not limited to timecosts and expenses of or relating to (1) the preparation, to furnish the Underwriters with written, executed printing and electronic copies filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Prospectus at and any amendment or supplement to the Registration Statement or Prospectus, (2) the preparation and delivery of certificates representing the Shares, (3) the printing of this Agreement, the Agreement Among Underwriters, any Dealer Agreements, any Underwriters' Questionnaire and the Custody Agreement and Power of Attorney, (4) furnishing (including costs of shipping and mailing) such locations copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom shares may be sold, (5) the quotation of the Shares on the National Association of Securities Dealers Automated Quotation System, (6) any filings required to be made by the Underwriters with the NASD, and the fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (7) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 7(f), including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (8) counsel to the Company and counsel to the Selling Shareholders and (9) the transfer agent for the Shares.
(j) If this Agreement shall be terminated by the Company or the Selling Shareholders pursuant to any of the provisions hereof or if for any reason the Company or any Selling Shareholder shall be unable to perform its obligations hereunder, the Company and the Selling Shareholders, in such quantities proportions (aggregating 100%) as you they may from time agree among themselves, will reimburse the several Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of counsel to time the Underwriters) reasonably request. If incurred by them in connection herewith.
(k) The Company will not at any time when time, directly or indirectly, take any action designed, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the delivery price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds" and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(m) During the period of six months commencing at the Closing Date, the Company will not, without the prior written consent of the Representatives, grant options to purchase shares of Common Stock at a prospectus price less than the initial public offering price.
(n) On or before the Effective Date, the Company shall provide the Representatives with true copies of duly executed, legally binding and enforceable agreements pursuant to which for a period of six months from the Effective Date, the officers and directors of the Company, holders of all shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock, agree that it or he or she will not directly or indirectly, issue, offer to sell, sell, grant an option for the sale of, assign, transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of First Albany Corporation.
(o) The Selling Shareholders will not, for a period of six months after the commencement of the public offering of the Shares, without the prior written consent of the Representatives, sell, contract to sell or otherwise dispose of any shares of Common Stock.
(p) The Selling Shareholders will not, without the prior written consent of the Representatives, make any bid for or purchase any shares of Common Stock during the six month period commencing on the date hereof.
(q) As soon as any Selling Shareholder is required under applicable law advised thereof, such Selling Shareholder will advise the Representatives and if at confirm such time advice in writing, (1) of receipt by such Selling Shareholder, or by any representative of such Selling Shareholder, of any communication from the Commission relating to the Registration Statement, the Prospectus or any preliminary prospectus, or any notice or order of the Commission relating to the Company or any of the Selling Shareholders in connection with the transactions contemplated by this Agreement and (2) of the happening of any event shall have occurred as a result during the period from and after the Effective Date that in the judgment of which such Selling Shareholder makes any statement made in the Registration Statement or the Prospectus as then amended untrue or supplemented would include an untrue statement that requires the making of a material fact any changes in the Registration Statement or omit to state any material fact necessary the Prospectus in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a).
(iv) To make generally available to its shareholders and to deliver to you as soon as practicable, but in any event not later than twelve months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(v) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any Common Shares or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of the Representatives;
(vi) To not take, 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;
(vii) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations;
(xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the First Time of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof to the Representatives.
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulations.
Appears in 1 contract
Agreements of the Company and the Selling Shareholders. (a) The Company covenants and agrees with each of the Underwritersseveral Underwriters as follows:
(i) To prepare The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) connection with sales of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this AgreementShares by an underwriter or dealer, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no file any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Representatives not less than one business day prior to any Time of Delivery the filing thereof and the Representatives shall not have objected thereto in good faith; provided, that the Representatives shall be disapproved by you advise the Company promptly after being given a reasonable opportunity to review and comment thereon; to advise you, promptly after it receives notice thereof, in writing when the distribution of the time Shares has been completed and the period during which the Prospectus is required by law to be delivered in connection with sales of the Shares by an underwriter or dealer has been terminated.
(ii) The Company will use its best efforts to cause the Registration Statement to become effective, and will notify the Representatives promptly, and will confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (iii) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (iv) of the suspension happening of any event during the period mentioned in the second sentence of Section 5(a)(v) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use Prospectus untrue in any material respect or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained changes in the Registration Statement, the Time of Sale Disclosure Package Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent timein which they are made, not misleadingmisleading and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Company will promptly notify Registration Statement, any preliminary prospectus or the Representatives and will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission;
(ii) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities or Blue Sky laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(iii) As soon as reasonably practicable but in no event later than 5:00 p.m. on the second business day prior to the First Time of Delivery and from time to time, to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably requestProspectus. If at any time when the delivery of a prospectus is required under applicable law and if at such time Commission shall issue any event shall have occurred as a result of which order suspending the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a).
(iv) To make generally available to its shareholders and to deliver to you as soon as practicable, but in any event not later than twelve months after the effective date effectiveness of the Registration Statement, an earnings statement of the Company and will make every reasonable effort to obtain the Subsidiaries (which need not be audited) complying with Section 11(a) withdrawal of such order at the Securities Act and earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 158 430A of the Rules and Regulations covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(v) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”)Regulations, to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to will comply with the Shares, including but not limited to any Common Shares or any other capital stock provisions of and make all requisite filings with the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than Commission pursuant to said Rule 430A and notify the Company’s benefit plans existing on, or upon the conversion or exchange Representatives promptly of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of the Representatives;
(vi) To not take, 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;
(vii) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) all such filings. If the Company elects to rely upon Rule 462(b) of under the Rules and RegulationsAct, to the Company shall file a registration statement under Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m.P.M., Washington, D.C. timeEastern Standard Time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the such Rule 462(b) Registration Statement registration statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations;.
(xiiii) To The Company will furnish to each Representative, without charge, one manually signed copy of each of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto; and will furnish to the Representatives, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
(iv) The Company will comply with all of the provisions of any undertakings contained in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing ProspectusStatement.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the First Time of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To On the Effective Date, and thereafter from time to time, the Company will deliver to each of the Representatives on or prior to the date Underwriters, without charge, as many copies of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement any amendment or supplement thereto as the Representatives may reasonably request. The Company consents to the use of a material fact the Prospectus or omit any amendment or supplement thereto by the several Underwriters and by all dealers to state whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any material fact necessary period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make the statements any statement therein, in the light of the circumstances then prevailingunder which it was made, not misleading, or if it is necessary to supplement or amend the Selling Shareholder Prospectus to comply with law, the Company will give prompt forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies of such supplement or amendment to the Prospectus as the Representatives may reasonably request. The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, if the Representatives after reasonable prior notice thereof to the Representativesshall have objected thereto in good faith.
(cvi) Each Underwriter severally agrees that:Prior to any public offering of the Shares, the Company will cooperate with the Representatives and counsel to the Underwriters in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request; provided, that in no event shall the Company be obligated to so register or qualify the Shares in any jurisdiction where, as a result thereof, the Company would become subject to general service of process, to qualification to do business as a foreign entity or to registration as a securities dealer.
(ivii) Such The Company will, in accordance with and for so long as required under the Exchange Act Rules and Regulations, furnish to its shareholders an annual report (including a balance sheet and statements of income, shareholders' equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, within 60 days after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), an unaudited consolidated summary balance sheet and statement of operations of the Company and its Subsidiaries, if any, for such quarter.
(viii) During the five year period commencing on the Effective Date, the Company will furnish to each Representative and each other Underwriter who may so request copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to each Representative and to each other Underwriter who may so request a copy of each annual or other report it shall not include any “issuer information” be required to file with or deliver to the Commission.
(ix) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the Availability Date (as defined below) an earnings statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date, which will satisfy the provisions of Section 11(a) of the Act (including Rule 433 158 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 ). For the purpose of the Rules and Regulations) used or referred to by such Underwriter without preceding sentence, "Availability Date" means the prior consent 45th day after the end of the Company (any fourth fiscal quarter following the fiscal quarter that includes such issuer information with respect to whose use Effective Date, except that if such fourth fiscal quarter is the Company has given its consentlast quarter of the Company's fiscal year, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by "Availability Date" means the Company with 90th day after the Commission prior to the use end of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulationsfourth fiscal quarter.
Appears in 1 contract
Samples: Underwriting Agreement (Cray Inc)
Agreements of the Company and the Selling Shareholders. The Company and the Selling Shareholders agree, severally and not jointly, with the several Underwriters as follows:
(a) The Company agrees with each If the Effective Date of the Underwriters:
(i) To prepare Registration Statement is prior to the execution and delivery of this Agreement, the Company will file the Prospectus in a form reasonably approved by you and to file such Prospectus with the Commission pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to by First Albany Corporation, subparagraph (4)) of Rule 424(b) of the Rules and Regulations not later than the Commission’s close earlier of business on (A) the second business day following the execution and delivery of this AgreementAgreement or (B) the fifteenth business day after the Effective Date.
(b) The Company will not, or, if applicable, either prior to the Effective Date or thereafter during such earlier time period as may be the Prospectus is required by Rule 430A(a)(3) law to be delivered in connection with sales of the Rules and Regulations; to make no Shares by an Underwriter or dealer, file any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Representatives shall be disapproved by you promptly after being given a reasonable opportunity not have objected thereto in good faith.
(c) The Company will use its best efforts to review cause the Registration Statement to become effective, and comment thereon; to advise youwill notify the Representatives promptly, promptly after it receives notice thereofand will confirm such advice in writing, of (1) when the time Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (2) of any request by the Commission for amendments or supplements to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (3) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (4) of the suspension happening of any event during the period mentioned in the second sentence of Section 7(e) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use Prospectus untrue or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained changes in the Registration Statement, the Time of Sale Disclosure Package registration Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission;
(ii) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities or Blue Sky laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(iii) As soon as reasonably practicable but in no event later than 5:00 p.m. on the second business day prior to the First Time of Delivery and from time to time, to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request. If at any time when the delivery of a prospectus is required under applicable law and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made when such Prospectus is deliveredare made, not misleading, orand (5) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, if the Registration Statement, any preliminary prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Rules and Regulations, the Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Representatives promptly of all such filings.
(d) The Company will furnish to the Representatives, without charge, two signed copies of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, and will furnish to the Representatives, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits.
(e) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(f) During such period as a prospectus is required by law to be delivered in connection with offers and sales of the Shares by an Underwriter, the Company will deliver to each of the Underwriters, without charge, as many copies of the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request. The Company consents to the use of the Prospectus or any amendment thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any other reason it shall period of time thereafter during which the Prospectus is required by law to be necessary or appropriate delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to amend or supplement the Underwriters should be set forth in the Prospectus in order to make any statement therein, in light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to Company will forthwith prepare and furnish without charge duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct , without charge, such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (number of copies thereof as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a)may reasonably request.
(ivg) To As soon as practicable, but not later than the Availability Date (as defined below), the Company will make generally available to its shareholders and to deliver to you as soon as practicable, but in any event not later than twelve months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations covering a period of at least 12 months beginning after the effective date Effective Date) that will satisfy the provisions of the Registration Statement;
(v) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any Common Shares or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of the Representatives;
(vi) To not take, 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;
(vii) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) If the Company elects to rely upon Rule 462(bSection 11(a) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with Act. For the Commission in compliance with Rule 462(b) purpose of the Rules and Regulations by 10:00 p.m.preceding sentence, Washington"Availability Date" means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, D.C. timeexcept that, on if such fourth fiscal quarter is the date last quarter of this Agreementthe Company's fiscal year, and shall at "Availability Date" means the time of filing either pay to 90th day after the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment end of such fee pursuant to Rule 111(b) of the Rules and Regulations;
(xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectusfourth fiscal quarter.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the First Time of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof to the Representatives.
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulations.
Appears in 1 contract
Agreements of the Company and the Selling Shareholders. The Company and the Selling Shareholders (as to Section 5(i), (j), (k), (o), (p), (q) and (r)) agree, severally and not jointly, with the several Underwriters as follows:
(a) The Company agrees will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with each sales of the Underwriters:
(i) To prepare the Prospectus in a form reasonably approved Shares by you and to an Underwriter or dealer, file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Representatives shall be disapproved by you promptly after being given a reasonable opportunity not have objected thereto in good faith.
(b) The Company will use its best efforts to review cause the Registration Statement to become effective, and comment thereon; to advise youwill notify the Representatives promptly, promptly after it receives notice thereofand will confirm such advice in writing, of (1) when the time Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (2) of any request by the Commission for amendments or supplements to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (3) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (4) of the suspension happening of any event during the period mentioned in the second sentence of Section 5(e) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use Prospectus untrue or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained changes in the Registration Statement, the Time of Sale Disclosure Package Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading and (5) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. The Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 430A and to notify the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without charge, two signed copies of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Representatives, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the Company will deliver to each of the Underwriters, without charge, as many copies of the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances prevailing at that subsequent timeunder which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will promptly notify forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies thereof as the Representatives may reasonably request.
(f) Prior to any public offering of the Shares by the Underwriters, the Company will cooperate with the Representatives and will promptly amend counsel to the Underwriters in connection with the registration or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission;
(ii) Promptly from time to time to take such action as you may reasonably request to qualify qualification of the Shares for offering offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, request; provided, that in connection therewith no event shall the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to file a take any action which would subject it to general consent to service of process in any jurisdiction;jurisdiction where it is not now so subject.
(iiig) As During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and each other Underwriter who may so request copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its securities as soon as reasonably may be practicable but in no event later than 5:00 p.m. on the second business last day prior of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after the Effective Date, and satisfying the provisions of Section 11 (a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and the Selling Shareholders will pay, or reimburse if paid by the Representatives, all costs and expenses incident to the First Time performance of Delivery the obligations of the Company and from time the Selling Shareholders under this Agreement, including but not limited to timecosts and expenses of or relating to (1) the preparation, to furnish the Underwriters with written, executed printing and electronic copies filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Prospectus at and any amendment or supplement to the Registration Statement or the Prospectus, (2) the preparation and delivery of certificates representing the Shares, (3) the word processing, printing and reproduction of this Agreement, the Agreement Among Underwriters, any Dealer Agreements and any Underwriters' Questionnaire, (4) furnishing (including costs of shipping, mailing and courier) such locations copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (5) the listing of the Shares on the Nasdaq National Market, (6) any filings required to be made by the Underwriters with the NASD, and the reasonable fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (7) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such quantities as you may from time jurisdictions designated pursuant to time Section 5(f), including the reasonable fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (8) counsel to the Company, (9) the transfer agent for the Shares and (10) the Accountants.
(j) If this Agreement shall be terminated by the Company or the Selling Shareholders pursuant to any of the provisions hereof (otherwise than pursuant to Section 9) or if for any reason the Company or any Selling Shareholder shall be unable to perform its obligations hereunder, the Company or the Selling Shareholders, severally, will reimburse the several Underwriters for all out-of-pocket expenses (including the reasonable fees, disbursements and other charges of counsel to the Underwriters) reasonably request. If incurred by them in connection herewith.
(k) Neither the Company nor any Selling Shareholder will at any time when time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the delivery price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds" and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(m) During the period of 90 days commencing at the Closing Date, the Company will not, without the prior written consent of PaineWebber Incorporated, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Common Stock or securities convertible into Common Stock, other than to the Underwriters pursuant to this Agreement and other than pursuant to employee benefit plans.
(n) The Company will cause each of its executive officers and directors and those shareholders listed on Schedule III to enter into agreements with the Representatives in the form set forth in Exhibit C to the effect that they will not, for a prospectus period of 45 days after the commencement of the public offering of the Shares, without the prior written consent of PaineWebber Incorporated, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares (other than pursuant to employee stock option plans or in connection with other employee incentive compensation arrangements).
(o) The Selling Shareholders will not, without the prior written consent of PaineWebber Incorporated, make any bid for or purchase any shares of Common Stock during the 45-day period following the date hereof.
(p) As soon as any Selling Shareholder is required under applicable law advised thereof, such Selling Shareholder will advise PaineWebber Incorporated and if at confirm such time advice in writing, (1) of receipt by such Selling Shareholder, or by any representative of such Selling Shareholder, of any communication from the Commission relating to the Registration Statement, the Prospectus or any preliminary prospectus, or any notice or order of the Commission relating to the Company or any of the Selling Shareholders in connection with the transactions contemplated by this Agreement and (2) of the happening of any event shall have occurred as a result of during the period from and after the Effective Date during which the Prospectus as then amended is required by law to be delivered that in the judgment of such Selling Shareholder makes any statement made in the Registration Statement or supplemented would include an the Prospectus untrue statement or that requires the making of a material fact any changes in the Registration Statement or omit to state any material fact necessary the Prospectus in order to make the statements therein, in light of the circumstances under in which they were made when such Prospectus is deliveredmade, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a).
(ivq) To make generally available to its shareholders and to The Selling Shareholders will deliver to you as soon as practicable, but in any event not later than twelve months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(v) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any Common Shares or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the PaineWebber Incorporated prior written consent of the Representatives;
(vi) To not take, 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;
(vii) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations;
(xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the First Time of Delivery, Closing Date a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof to the Representatives).
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (N2k Inc)
Agreements of the Company and the Selling Shareholders. The Company and the Selling Shareholders (as to Sections 5(p), 5(q), 5(r) and 5(s)) agrees with the several Underwriters as follows:
(a) The Company agrees will cause the Prospectus Supplement to be filed as required by Section 3(a) hereof (but only if the Underwriters have not reasonably objected thereto by notice to the Company after having been furnished a copy within a reasonable time prior to filing). The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with each sales of the Underwriters:
(i) To prepare the Prospectus in a form reasonably approved Shares by you and to an Underwriter or dealer, file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations; to make no any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Underwriters within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Underwriters shall be disapproved by you promptly after being given a reasonable opportunity to review not have objected thereto in good faith.
(b) The Company will notify the Underwriters promptly, and comment thereon; to advise youwill confirm such advice in writing, promptly after it receives notice thereof, of the time (1) when any post-effective amendment to the Registration Statement has been filed becomes effective, (2) of any request by the Commission for amendments or becomes effective or any supplement supplements to the Prospectus, any amended Registration Statement or the Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to notify youadditional information, promptly after it receives notice thereof, (3) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use initiation of any Preliminary Prospectusproceedings for that purpose or the threat thereof, Prospectus or Issuer Free Writing Prospectus, (4) of the suspension happening of any event during the period mentioned in the second sentence of Section 5(e) that in the judgment of the qualification of the Shares for offering or sale Company makes any statement made in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the effectiveness of the Registration Statement or the use Prospectus untrue or that requires the making of any Preliminary Prospectus, Prospectus or Issuer Free Writing Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained changes in the Registration Statement, the Time of Sale Disclosure Package Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading and (5) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. The Company will prepare and file with the Commission, promptly upon the Underwriters request, any amendments or supplements to the Registration Statement or Prospectus that, in the Underwriters reasonable opinion, may be necessary or advisable in connection with the distribution of the Shares by the Underwriters.
(c) The Company will furnish to each of the Underwriters, without charge, one signed copy of the Registration Statement and of any post-effective amendment thereto (including any document filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), including financial statements and schedules, and all exhibits thereto.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) As soon as possible after the delivery and execution of this Agreement and the Price Determination Agreement, and thereafter from time to time, the Company will deliver to each of the Underwriters, without charge, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances prevailing at that subsequent timeunder which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will promptly notify forthwith prepare and duly file with the Representatives Commission an appropriate supplement or amendment thereto, and will promptly amend or supplement deliver to each of the Underwriters, without charge, such Issuer Free Writing number of copies thereof as the Underwriters may reasonably request. The Company shall not file any document under the Exchange Act before the termination of the offering of the Shares by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus to eliminate or correct such conflict, untrue statement or omission;which is not approved by the Underwriters after reasonable notice thereof.
(iif) Promptly from time Prior to time any public offering of the Shares by the Underwriters, the Company will cooperate with the Underwriters and counsel to take such action as you may reasonably request to qualify the Underwriters in connection with the registration or qualification of the Shares for offering offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Underwriters may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, request; provided, that in connection therewith no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process or taxation in any jurisdiction where it is not now so subject. The Company will advise the Underwriters promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Stock for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with the cooperation of the Underwriters, will make every reasonable effort to obtain the withdrawal thereof.
(g) During the period of five years commencing on the Effective Date, the Company will furnish to the Underwriters copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Underwriters a copy of each annual or other report it shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;with the Commission.
(iiih) As The Company will make generally available to holders of its securities as soon as reasonably may be practicable but in no event later than 5:00 p.m. on the second business last day prior to the First Time of Delivery and from time to time, to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and fifteenth full calendar month following the Prospectus at such locations and calendar quarter in such quantities as you may from time to time reasonably request. If at any time when the delivery of a prospectus is required under applicable law and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus (in form and substance satisfactory to the Underwriters) that will correct such statement or omission or effect such compliance; provided, however, that the foregoing does not apply to statements or omissions made in any Issuer Permitted Free Writing Prospectus (as hereinafter defined) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Permitted Free Writing Prospectus, it being acknowledged that the only such information provided by the Underwriters expressly for use therein consists of the information set forth in Section 8(a).
(iv) To make generally available to its shareholders and to deliver to you as soon as practicable, but in any event not later than twelve months after the effective date of the Registration Statementfalls, an earnings statement of the Company and the Subsidiaries (which need not be auditedaudited but shall be in reasonable detail) complying with Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations covering for a period of at least 12 months beginning ended commencing after the effective date of the Registration Statement;
(v) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), to not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any Common Shares or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any other capital stock of the Company or any such substantially similar securities (other than pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of the Representatives;
(vi) To not take, 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;
(vii) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus under the heading “Use of Proceeds;”
(viii) To use its best efforts to list the Shares, subject to notice of issuance, on Nasdaq and to maintain the listing of the Shares on Nasdaq;
(ix) To maintain, at its expense, a registrar and transfer agent for the Common Shares;
(x) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, on the date of this Agreementdate, and shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations;
(xi) To comply with all of the provisions of any undertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations; and
(xii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents and agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(b) Each Selling Shareholder severally and not jointly covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the First Time of Delivery, a properly completed and executed United States Treasury Department Form W-9, which may be replaced by any other applicable form or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representatives, such Selling Shareholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time and to do and perform all things to be done and performed under this Agreement prior to the applicable Time of Delivery and to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp duties and other similar taxes with respect to the Shares, if any, to be sold by such Selling Shareholder;
(v) To deliver to the Representatives on or prior to the date of this Agreement the lock-up agreement referenced in Section 7(i) hereof; and
(vi) That if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Selling Shareholder will give prompt notice thereof to the Representatives.
(c) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (B) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information; and
(ii) It will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 of the Rules and Regulations.satisfying the
Appears in 1 contract
Samples: Underwriting Agreement (Imperial Credit Mortgage Holdings Inc)
