Common use of Agreements of the Company Clause in Contracts

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 3 contracts

Samples: Underwriting Agreement (Green Solutions China, Inc.), Underwriting Agreement (China Green, Inc.), Underwriting Agreement (China Green, Inc.)

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Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The Company will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective, and effective (if Rule 430A is used or the filing not effective as of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval time and date of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof ) and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement or any registration statement filed pursuant to Rule 462(b) under the Act is filed or becomes effective; , (ii) if Rule 430A under the Act is employed, when the Prospectus or term sheet (as described in Rule 434(b) under the Act) has been timely filed pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission for any amendments or supplements to the Registration Statement Statement, any Prepricing Prospectus or any amendment or supplements to the Prospectus or for additional information; , (iiiiv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation (or threatened initiation) of any proceedings proceeding for that purpose such purposes, and (v) within the period of time referred to in Section 5(e) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware of the occurrence operations, or of any event that in comes to the judgment attention of the Company Company, that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes in the Registration Statement or the Prospectus therein in order to make the statements thereintherein not misleading in any material respect, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company Act of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (b) The Company will furnish to you, without charge, two signed copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request. (c) The Company has omitted will not file any information from amendment to the Registration Statement, file any registration statement pursuant to Rule 430A462(b) under the Act or make any amendment or supplement to the Prospectus of which you shall not previously have been advised (with a reasonable opportunity to review such amendment, it will use its best efforts registration statement or supplement) or to comply which you have reasonably objected after being so advised, or which is not in compliance with the provisions of Act. The Company will prepare and make all requisite filings file with the Commission pursuant any amendments or supplements to said Rule 430A and to notify the Underwriters promptly Registration Statement or Prospectus which, in the opinion of all such filingscounsel of the several Underwriters, are reasonably necessary or advisable in connection with the distribution of the Shares by the Underwriters. (d) IfThe Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company. (e) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time when a Prospectus relating prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel necessary to the Company supplement or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the CommissionCommission an appropriate supplement or amendment thereto, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver furnish to the Underwriterseach Underwriter and to each dealer who has previously requested Prospectuses, without charge, such a reasonable number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably requestthereof. (f) The Company will comply cooperate with all the undertakings contained in the Registration Statement. (g) The Company represents you and agrees that, except counsel for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably requestdesignate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect such registration or qualification for so long as required to complete the distribution of the Shares, if any; provided, 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 suits, in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities . In each jurisdiction in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, been qualified as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingabove provided, the Company will grant Grandview the right of first refusal to co-manage any public underwriting make and file such statements and reports in each year as are or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved may be required by the shareholders laws of such jurisdiction. In the Company, (ii) shares issued in payment of event that the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.qualification of

Appears in 3 contracts

Samples: Underwriting Agreement (Insurance Management Solutions Group Inc), Underwriting Agreement (Insurance Management Solutions Group Inc), Underwriting Agreement (Insurance Management Solutions Group Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every use its reasonable effort best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If time. (b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company has omitted shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any information from such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration StatementStatement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, pursuant and to Rule 430A, it will use its reasonable best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters such Underwriter or dealer may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably requestrequest in writing. (f) The Company will comply Prior to any public offering of the Shares, to cooperate with all the undertakings contained in the Registration Statement. (g) The Company represents you and agrees that, except counsel for the Approved FWP, it has not and will not, unless it obtains Underwriters at the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale expense of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anyto continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be obligated required in connection therewith to register or qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or to take any action which that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction where in which it is not now so subject. (g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available. (h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) The Company will apply To use its best efforts to list for quotation the net proceeds from Shares on the offering Nasdaq National Market and sale to maintain the listing of the Offered Securities in Shares on the manner set forth in Nasdaq National Market for a period of three years after the Prospectus under the caption “Use date of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersthis Agreement. (j) The Company will To use its reasonable best efforts to ensure that do and perform all things required or necessary to be done and performed under this Agreement by the Shares are listed on Company prior to the NASDAQ Capital Market at Closing Date or any Option Closing Date, as the time of the Initial Closingcase may be, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after satisfy all conditions precedent to the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pk) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriters, deliver written affirmation effectiveness of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes this Agreement does not cover all of the public offering materials within Shares, to file a reasonable time after Rule 462(b) Registration Statement with the ClosingCommission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., as well as a reasonable number New York City time, on the date of commemorative Lucite tombstones as requested by Grandviewthis Agreement. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 3 contracts

Samples: Underwriting Agreement (Echostar Communications Corp), Underwriting Agreement (News America Inc), Underwriting Agreement (Mci Worldcom Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters Placement Agents as follows: (ai) The Registration Statement has become effective, and if Rule 430A under the Act is used or the filing of the Final Prospectus is otherwise required under Rule 424(b)) under the Act, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject to the prior approval of Grandviewthe Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to Grandview the Placement Agents promptly following such filing. (bii) The Company will not, during such period as the Final Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this AgreementAgreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to Grandview the Placement Agents within a reasonable period of time prior to the filing thereof and Grandview the Placement Agents shall not have reasonably objected thereto in good faith. (ciii) The Company will notify the Underwriters Placement Agents promptly, and will, if requested, confirm such notification in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effective; (ii2) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Final Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv4) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Final Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyhereby or in connection with sales of Common Stock pursuant to market making activities by The Representative, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A430A under the Act, it 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 Underwriters Placement Agents promptly of all such filings. (div) If, at any time when a the Final Prospectus relating to the Shares is required to be delivered under the Securities ActAct (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company becomes aware of the occurrence of any event as a result of which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, the Placement Agents and will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the UnderwritersPlacement Agents, without charge, such number of copies thereof as the Underwriters Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the UnderwritersPlacement Agents, and the Placement Agents agree to provide to each Investor, prior to the Closing, a copy of the Final Prospectus and any amendments or supplements thereto. (ev) The Company will furnish to the Underwriters Placement Agents and Underwriter Counseltheir counsel, without charge: charge (ia) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (iib) so long as a prospectus relating to the Shares is required to be delivered under the Securities ActAct (whether physically or through compliance with Rule 172 under the Act or any similar rule), as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Underwriters Placement Agents may reasonably request. (fvi) The Company will comply with all the undertakings contained in the Registration Statement. (gvii) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Issuer Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under without the Securities Act, and has complied and will comply with prior written consent of the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. Placement Agents. (viii) The Company will retain in accordance with the Rules and Regulations all Permitted Issuer Free Writing Prospectuses not required to be filed pursuant to filed, and timely file and include the appropriate legends as required by the Rules and Regulations. The Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (hix) The Company will apply the net proceeds from the offering and sale of the Shares in the manner set forth in the Final Prospectus under the caption “Use of Proceeds.” (x) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Placement Agents and Underwriter Counsel their counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Placement Agents may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (jxi) The Company will use its best efforts to ensure that cause the Shares are to be listed for trading on the NASDAQ The Nasdaq Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (oxii) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (pxiii) The Company shall, upon will notify promptly the reasonable request Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the Underwriters, deliver written affirmation of any certificate delivered period when a prospectus relating to the Underwriters Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Section 7 prior to any Closing Date following Rule 172 under the Initial Closing DateAct) and (b) completion of the Lock-Up Period. (qxiv) The Company shall supply Grandview and its counselIf at any time following the distribution of any Written Testing-the-Waters Communication, at any event occurs as a result of which such Written Testing-the-Waters Communication would include any untrue statement of a material fact or omit to state any material fact necessary to make the Company’s costs, with a reasonable number of bound volumes statements therein in the light of the public offering materials within a reasonable circumstances under which they were made at such time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingnot misleading, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales notify promptly the Representative so that use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented; (ii) amend or supplement the Written Testing-the-Waters Communication to employees under correct such statement or omission; and (iii) supply any compensation amendment or supplement to the Representative in such quantities as may be reasonably requested. (xv) The Company will not, directly or indirectly, without the prior written consent of the Placement Agents, offer to sell, sell, contract to sell, grant any option or warrant to purchase, make any short sale, or otherwise dispose of (or announce any offer, sale, grant of any option or warrant to purchase or other disposition), any shares of capital stock option plan approved by of the shareholders Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company, (the “Lock-Up Securities”) for a period of 180 days after the date of this Agreement (the “Lock-Up Period”), except with respect to (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding as of the date hereof, and (ii) the issuance of shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectus. (xvi) The Company agrees that if the Representative agrees to waive or release any subsidiary officer or successor director of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company containing will announce the impending release or waiver by press release through a major news services at least two business days before the effective date of such proposal, then Grandview will have not claim release or right with respect to any such sale contained in any such noticewaiver.

Appears in 3 contracts

Samples: Placement Agency Agreement (Truett-Hurst, Inc.), Placement Agency Agreement (Truett-Hurst, Inc.), Placement Agency Agreement (Truett-Hurst, Inc.)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effectiveTo advise you promptly and, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b)requested by you, the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of confirm such filing to Grandview promptly following such filing.advice in writing, (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of any of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you four signed copies of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as first filed with the Commission pursuant and of each amendment to said Rule 430A it, including all exhibits, and to notify furnish to you and each Underwriter designated by you such number of conformed copies of the Underwriters promptly Registration Statement as so filed and of all each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such filingsform with the Commission within the applicable period specified in Rule 424(b) under the Act; and during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised. (d) IfPrior to 10:00 a.m., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as you may reasonably request; provided, however, that in case any Underwriter or dealer is so required to deliver a prospectus in connection with sales of any of the Shares at any time when a nine months or more after the time of issue of the Prospectus, the preparation and delivery of such copies of the Prospectus relating (and of any amendment or supplement to the Shares is required to Prospectus) as you so request shall be delivered under at the Securities Actexpense of such Underwriter or dealer. (e) If during the period specified in Section 5(d), the Company becomes aware of the occurrence of any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, upon your request forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinwill not, in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any other reason it dealer as many copies thereof as you may reasonably request; provided, however, that in case any Underwriter or dealer is necessary, required to deliver a prospectus in connection with the reasonable judgment sale of counsel to any of the Company or Underwriter Counsel, Shares at any time to amend nine months or supplement more after the time of issue of the Prospectus, the preparation and delivery of such copies of the Prospectus or the Registration Statement to comply with the Securities Act or the Rules (and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an of any amendment or supplement to the Prospectus that corrects Prospectus) as you so request shall be at the expense of such statement Underwriter or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwritersdealer. (ef) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company will furnish shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Underwriters and Underwriter CounselProspectus, without charge: the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (ig) one conformed copy To make generally available to its stockholders as soon as practicable but in any event not later than eighteen months after the "effective date of the Registration Statement Statement" (as originally defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) that shall satisfy the provisions of Section 11(a) of the Act (including, at the option of the Company, Rule 158 under the Act), and to advise you in writing when such statement has been so made available. (h) During the period of five years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the record holders of Common Stock generally or non-confidential reports, financial statements and other communications furnished to or filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies or any national securities exchange on which any class of securities of the Prospectus or any amendment or supplement thereto Company is listed and such other publicly available information concerning the Company and its subsidiaries as the Underwriters you may reasonably request. (fi) The Company will comply Regardless of whether the transactions contemplated in this Agreement are consummated or this Agreement is terminated, and except as otherwise provided herein, to pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the undertakings contained preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the Registration Statement.quantities specified herein, (gii) The Company represents all costs and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating expenses related to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, transfer and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees, and the reasonable fees, charges and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), (v) the filing fees, fees, charges and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) the fees, if any; provided, that in no event shall and expenses, if any, of the QIU (including the fees, charges and disbursements of counsel to the QIU), and (ix) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it and the Selling Stockholders hereunder for which provision is not now so qualified otherwise made in this Section. The provisions of this Section shall not supersede or to take otherwise affect any action which would subject it to general service agreement that the Company and the Selling Stockholders may otherwise have for allocation of process such expenses among themselves. It is understood, however, that, except as provided in this Section 5 and Sections 8, 9 and 13 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of GrandviewShares by them, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersand any advertising expenses connected with any offers they may make. (j) The Company will To list for quotation the Shares on the Nasdaq National Market and to use its best efforts to ensure that maintain the listing of the Shares are listed on the NASDAQ Capital Nasdaq National Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closingdate of this Agreement. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company on or prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 p.m., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (Jfax Com Inc), Underwriting Agreement (Jfax Com Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you three signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending March 31, except for 2001 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that Inc., (vi) all fees and expenses in no event shall connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, (ix) the fees and expenses of the QIU (including the fees and disbursements of counsel to the QIU), and (x) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it hereunder for which provision is not now so qualified or to take any action which would subject it to general service of process otherwise made in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersthis Section. (j) The Company will To use its best efforts to ensure that list for quotation the Shares are listed on the NASDAQ Capital Nasdaq National Market at and to maintain the time listing of the Initial Closing, and seeking and using its best efforts to maintain such listing Shares on the Nasdaq National Market for a period of at least three (3) years after the Closingdate of this Agreement. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (Netpliance Inc), Underwriting Agreement (Netpliance Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you three signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; PROVIDED, HOWEVER, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, except for 1999 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that Inc., (vi) all fees and expenses in no event shall connection with the preparation and filing of any registration statement on Form 8-A relating to the Common Stock and all costs and any expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it hereunder for which provision is not now so qualified or to take any action which would subject it to general service of process otherwise made in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersthis Section. (j) The Company will To use its best efforts to ensure that maintain the listing of the Shares are listed on the NASDAQ Capital Nasdaq National Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closingdate of this Agreement. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (Rural Cellular Corp), Underwriting Agreement (Rural Cellular Corp)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that obtain the Shares are listed on the NASDAQ Capital Market withdrawal or lifting of such order at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closingearliest possible time. (kb) The Company shall retain a firm To furnish to you four signed copies of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement as first filed with the Commission and continuing of each amendment to retain such accountantsit, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holdersincluding all exhibits, and continue to retain furnish to you and each Underwriter designated by you such firm, or a comparable firm, for a period number of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization conformed copies of the price Registration Statement as so filed and of the Shares each amendment to facilitate the sale or resale of any of the Shares. (p) The Company shallit, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closingwithout exhibits, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandviewyou may reasonably request. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (Davids Bridal Inc), Underwriting Agreement (Medscape Inc)

Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows: (a) The Registration Statement has become effectiveCompany will prepare a supplement to the Prospectus setting forth the amount of the Notes covered thereby and the terms thereof not otherwise specified in the Prospectus, the price at which the Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and reallowances, if any, and if Rule 430A is used or such other information as the filing Underwriters and the Company deem appropriate in connection with the offering of the Prospectus is otherwise required under Rule 424(b)Notes, and the Company will timely file the Prospectus (properly completed if Rule 430A has been used), subject such supplement to the prior approval of Grandview, prospectus with the SEC pursuant to Rule 424(b) within under the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Act, but the Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, not file any amendment or supplement amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus Prospectus, unless a copy thereof it shall first have been submitted to Grandview within a reasonable period delivered copies of time prior such amendments or supplements to the filing thereof and Grandview Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement or if the Underwriters shall not have reasonably objected thereto in good faith. (c) The promptly after receipt thereof; the Company will notify immediately advise the Underwriters promptly, and will, if requested, confirm such notification in writing: or the Underwriters' counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement becomes effective; has become or will become effective and (ii) of any request by order or communication suspending or preventing, or threatening to suspend or prevent, the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) offer and sale of the issuance by the Commission of any stop order preventing Notes or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for or examinations that purpose may lead to such an order or the threat thereof; (iv) of becoming aware communication, whether by or of the occurrence of SEC or any event that in the judgment of authority administering any state securities or Blue Sky law, as soon as the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements thereinis advised thereof, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with prevent the provisions issuance of and make all requisite filings with the Commission pursuant to said Rule 430A any such order or communication and to notify the Underwriters promptly of all such filingsobtain as soon as possible its lifting, if issued. (db) If, at any time when a the Prospectus relating to the Shares Notes is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company promptly will promptly notify Grandview and, subject to Section 4(b) hereof, each of the Underwriters of such event and will promptly prepare and file with the CommissionSEC, at the Company’s its own expense, an amendment to the Registration Statement or an amendment or supplement to the such Prospectus that corrects will correct such statement or omission or effects an amendment that will effect such compliance compliance. Neither the Underwriters' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof. (c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes. (d) The Company will deliver furnish to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with (including all documents and exhibits thereto or incorporated by reference therein), the Commission and each amendment thereto, including financial statements and schedulesProspectus, and all exhibits thereto, (ii) so long as a prospectus amendments and supplements to such documents relating to the Shares is required to be delivered under the Securities ActNotes, as many copies of the Prospectus or any amendment or supplement thereto in each case in such quantities as the Underwriters may reasonably request. (e) No amendment or supplement will be made to the Registration Statement or Prospectus which the Underwriters shall not previously have been advised or to which it shall reasonably object after being so advised. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed cooperate with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, Underwriters and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel their counsel in connection with the registration qualification of, or qualification procurement of exemptions with respect to, the Shares Notes for offer offering and sale by the Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriters may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; provided, 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 suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (ig) The Company will apply consents to the net proceeds from use, in accordance with the offering securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and sale by dealers, of the Offered Securities in Prospectus furnished by the manner set forth in Company. (h) To the Prospectus under extent, if any, that the caption “Use rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of Proceedsdocuments or the taking of any other actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds (i) So long as any of the Offering Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be used filed with the SEC pursuant to pay outstanding loans the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from officers, directors or stockholderstime to time. (j) The Company will use its best efforts If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to ensure that any provisions hereof (otherwise than by notice given by the Shares are listed Underwriters terminating this Agreement pursuant to Section 8 or Section 9 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the NASDAQ Capital Market at the time part of the Initial ClosingCompany to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and seeking and using its best efforts to maintain such listing expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for a period loss of at least three (3) years after the Closingprofits or otherwise. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have net proceeds from the responsibility for the preparation sale of the financial statements and Notes hereunder will be applied substantially in accordance with the financial exhibits, if any, to be included description set forth in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectus. (l) The Except as stated in this Agreement and in the Prospectus, the Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agenthas not taken, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Notes to facilitate the sale or resale of any the Notes. (m) For a period from the date of this Agreement until the retirement of the SharesNotes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants' reports furnished to the Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Trustee or the Company. (n) On or before each date that Financed Eligible Loans are pledged under the Indenture, the Company shall xxxx its records relating to the Financed Eligible Loans and shall cause the Servicer and NLS to xxxx their respective computer records relating to the Financed Eligible Loans to show the pledge of such Financed Eligible Loans by the Company to the Trustee, and the Company shall not take, or permit any other person to take, any action inconsistent with the security interest of the Trustee in the Financed Eligible Loans, other than as permitted by the Basic Documents. (o) For the period beginning on the date of this Agreement and ending 90 days after the final Closing Date, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans other than pursuant to the Nelnet Student Loan Trust 2003-2 transaction; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company. (p) The Company shallIf, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the reasonable request of the Underwriters1933 Act, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date then, immediately following the Initial Closing Dateexecution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted. (q) The Company shall supply Grandview and its counselAs soon as practicable, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time but not later than 16 months after the Closing, as well as a reasonable number date of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingthis Agreement, the Company will grant Grandview make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the right later of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders effective date of the CompanyRegistration Statement, (ii) shares issued in payment the effective date of the consideration for an acquisition most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) conventional banking arrangements and commercial debt financingthe date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeAct.

Appears in 2 contracts

Samples: Underwriting Agreement (Nelnet Inc), Underwriting Agreement (Nelnet Education Loan Funding Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you four signed copies of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as first filed with the Commission pursuant and of each amendment to said Rule 430A it, including all exhibits, and to notify furnish to you and each Underwriter designated by you such number of conformed copies of the Underwriters promptly Registration Statement as so filed and of all such filingseach amendment to it, without exhibits, as you may reasonably request. (dc) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which To prepare the Prospectus, as then amended or supplementedthe form and substance of which shall be satisfactory to you, would, and to file the Prospectus in such form with the reasonable judgment of counsel to Commission within the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary applicable period specified in order to make Rule 424(b) under the statements therein, Act; during the period specified in the light of the circumstances under which they were madeSection 5(d) below, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include file any untrue statement of a material fact or omit further amendment to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement and not to comply with make any amendment or supplement to the Securities Act Prospectus of which you shall not previously have been advised or the Rules and Regulations, the Company will promptly notify Grandview to which you shall reasonably object after being so advised; and, subject during such period, to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expensepromptly upon your reasonable request, an any amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement which may be necessary or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel advisable in connection with the registration or qualification distribution of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closingby you, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.use its

Appears in 2 contracts

Samples: Underwriting Agreement (Goto Com Inc), Underwriting Agreement (Goto Com Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you _______ signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending March 31, except for 2001 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that Inc., (vi) all fees and expenses in no event shall connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market and other national securities exchanges and foreign stock exchanges, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it hereunder for which provision is not now so qualified or to take any action which would subject it to general service of process otherwise made in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersthis Section. (j) The Company will To use its best efforts to ensure that list for quotation the Shares are listed on the NASDAQ Capital Nasdaq National Market at and to maintain the time listing of the Initial Closing, and seeking and using its best efforts to maintain such listing Shares on the Nasdaq National Market for a period of at least three (3) years after the Closingdate of this Agreement. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (E Stamp Corp), Underwriting Agreement (E Stamp Corp)

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter any Underwriter or any dealer (including in connection with the offering contemplated by this Agreementcircumstances where such requirement may be satisfied pursuant to Rule 172), file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Representatives within a reasonable period of time prior to the filing thereof and Grandview the Representatives shall not have reasonably objected thereto in good faith. (cb) The Company will notify the Underwriters Representatives promptly, and will, if requested, will confirm such notification advice in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effective; , (ii2) of the receipt of any comments from or any request by the Commission for any amendments or supplements to the Registration Statement Statement, any Preliminary Prospectus or any amendment or supplements to the Prospectus or for additional information; , (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, any notice objecting to its use or the initiation of any proceedings for that purpose or the threat thereof; , (iv4) of becoming aware of the occurrence happening of any event during the period mentioned in the second sentence of Section 5(e) that in the judgment of the Company makes any statement made in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; , and (v5) of receipt by the Company or any representative or attorney of the Company of any notification with respect other communication from the Commission relating to the Company, the Registration Statement, any suspension of Preliminary Prospectus or the qualification of the Shares for offer and sale in any jurisdictionProspectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If . (c) The Company will furnish to the Company has omitted any information from Representatives, without charge, four copies of the signed copies of the Registration StatementStatement and of any post-effective amendment thereto, pursuant including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to Rule 430Abe incorporated by reference into the Prospectus) and will furnish to the Representatives, it will use its best efforts without charge, for transmittal to comply with each of the provisions other Underwriters, copies of the Registration Statement and make all requisite filings with the Commission pursuant to said Rule 430A any post-effective amendment thereto, including financial statements and to notify the Underwriters promptly of all such filingsschedules but without exhibits. (d) IfThe Company will comply with all the provisions of any undertakings contained in the Registration Statement. (e) The Company will deliver to each of the Underwriters, at without charge, as many copies of the Prospectus, each Issuer Free Writing Prospectus or any time when a Prospectus relating amendment or supplement thereto, as the Representatives may reasonably request. The Company consents to the use of the Prospectus, each Issuer Free Writing 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Act). 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 Securities ActProspectus to comply with law, subject to the provisions of Section 5(a) hereof, the Company becomes aware will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Underwriters, without charge, such number of copies thereof as the Representatives may reasonably request. The Company shall not file any document under the Exchange Act before the termination of the occurrence offering of any the Shares by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus which is not approved by the Representatives after reasonable notice thereof. If there occurs an event or development as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, General Disclosure Package would include any an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madethen prevailing, not misleading, or the Registration Statement, as then Company will notify promptly the Representatives so that any use of the General Disclosure Package may cease until it is amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply cooperate with all the undertakings contained in the Registration Statement. (g) The Company represents Representatives and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating counsel to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel Underwriters in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Representatives may reasonably request, if any; provided, 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. (ig) During the period of five years commencing on the date hereof, the Company will furnish to each of 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 each of 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 apply make generally available to holders of its securities as soon as may be practicable but in no event later than the net proceeds from the offering and sale last day of the Offered Securities fifteenth full calendar month following the calendar quarter in which the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of GrandviewEffective Date falls, a consolidated earnings statement (which shall need not be unreasonably withheldaudited but shall be in reasonable detail), conditioned or delayed, no proceeds of with respect to the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountantsPrimary Entities, for a period of at least three (3) years 12 months commencing after the ClosingEffective Date, and satisfying the provisions of Section 11(a) of the Act (including Rule 158 thereunder) and will file such earnings statement as an exhibit to the next periodic report required by Section 13 or 15(d) of the Exchange Act covering the period when the earnings statement is released. (li) The If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 9 hereof or by notice given by you terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company shall retain a transfer agent to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3Underwriters) years after the Closingreasonably incurred by you in connection herewith. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (oj) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the SharesShares in violation of the Act. (pk) The Company shall, upon will apply the reasonable request net proceeds from the offering and sale of the UnderwritersShares in the manner set forth in the General Disclosure Package and the Prospectus under “Use of Proceeds.” (l) The Company will use its best efforts to have the Shares listed, deliver written affirmation subject to notice of any certificate delivered to issuance, on the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateNew York Stock Exchange. (qm) The Company shall supply Grandview represents and its counselagrees that, at unless it obtains the Company’s costsprior written consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company and the Representatives, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Act. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with a reasonable number the requirements of bound volumes Rules 164 and 433 of the public Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an Issuer Free Writing Prospectus as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Shares or their offering materials within a reasonable time after or (ii) information that describes the Closing, as well as a reasonable number final terms of commemorative Lucite tombstones as requested by Grandviewthe Shares or their offering. (rn) Upon During the Closing, period beginning from the Company will grant Grandview date hereof and continuing to and including the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by date 60 days after the shareholders date of the CompanyProspectus, (ii) shares issued in payment not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) any securities of the Company that are substantially similar to the Shares, including but not limited to any options or warrants to purchase shares of Common Stock or any subsidiary securities that are convertible into or successor of exchangeable for, or that represent the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusalto receive, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage Common Stock or other investment banking compensation for any such offering and shall act substantially similar securities (other than pursuant to employee stock option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the lead manager date of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a this Agreement), without your prior written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeconsent.

Appears in 2 contracts

Samples: Underwriting Agreement (Ps Business Parks Inc/Ca), Stock Purchase Agreement (Ps Business Parks Inc/Ca)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as followsthat: (a) The Registration Statement has become effective, During the period beginning with the Initial Sale Time and if Rule 430A is used or ending on the filing later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be no longer required by law to be delivered in connection with sales the initial offering or sale of the Shares by an underwriter or dealer Securities (including in connection with circumstances where such requirement may be satisfied pursuant to Rule 172) (the offering contemplated by this Agreement“Prospectus Delivery Period”), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless, in each case, the Company has furnished the Representatives a copy for their review prior to such time, and the Company will not file any such proposed amendment or supplement to which the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior Representatives reasonably object. Subject to the filing thereof foregoing sentence, the Company will cause the Final Prospectus, properly completed, and Grandview shall not have reasonably objected any supplement thereto in good faithto be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings. (cb) The During the Prospectus Delivery Period, the Company will notify promptly advise the Underwriters promptly, and will, if requested, confirm such notification in writing: Representatives (i) when the Final Prospectus and any post-effective Issuer Free Writing Prospectus, and any supplements or amendments thereto, have been filed with the Commission pursuant to Rules 424(b) and 433, respectively, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement has been filed or becomes effective; , (iiiii) of any request by the Commission for any amendments to amendment of the Registration Statement or any amendment or supplements supplement to the Final Prospectus or for any additional information; , (iiiiv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation institution or threatening of any proceedings proceeding for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of the receipt by the Company of any notification with respect to any the suspension of the qualification of the Shares Securities for offer and sale in any jurisdictionjurisdiction or the initiation or threatening of any proceeding for such purpose. If at The Company will use its reasonable best efforts to prevent the issuance of any time such stop order and, if issued, to obtain as soon as possible the Commission shall issue any order suspending withdrawal thereof, including, if necessary, and subject to the effectiveness first sentence of paragraph (a) of this Section 4, by filing an amendment to the Registration Statement in connection with the offering contemplated hereby, the or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable. (c) The Company will make every reasonable effort to obtain prepare a final term sheet, containing solely a description of the withdrawal of any Securities, as set forth in Schedule IV hereto, and will file such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, term sheet pursuant to Rule 430A, it will use its best efforts to comply with 433(d) within the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all time required by such filingsRule. (d) If, at any time when a during the Prospectus relating to the Shares is required to be delivered under the Securities ActDelivery Period, the Company becomes aware of the occurrence of any event occurs as a result of which which, in the opinion of counsel for the Underwriters or counsel for the Company, the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, made not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time shall be necessary to amend the Registration Statement or supplement the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus or the Registration Statement to comply with the Securities Act or the Rules Exchange Act or the respective rules and Regulationsregulations thereunder, the Company promptly will promptly (i) notify Grandview andthe Representatives of such event or, subject to Section 4(bin circumstances where the Company’s obligations under this paragraph (d) hereofarise from an opinion of counsel for the Underwriters, will promptly notify the Representatives of such event after the Company receives such opinion, (ii) prepare and file with the Commission, at subject to the Company’s expensefirst sentence of paragraph (a) of this Section 4, an amendment to the Registration Statement Statement, a new registration statement or an amendment or supplement to the Disclosure Package or the Final Prospectus that corrects will correct such statement or omission or effects effect such compliance and will deliver compliance, (iii) use its reasonable best efforts to have any amendment to the Underwriters, without charge, such number of copies thereof Registration Statement or new registration statement declared effective as the Underwriters may reasonably request. The Company consents soon as practicable and (iv) supply any supplemented Final Prospectus to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersRepresentatives in such quantities as may be reasonably requested. (e) The As soon as practicable, the Company will furnish make generally available to its security holders and to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy Representatives an earnings statement or statements of the Registration Statement as originally filed with Company and its subsidiaries (which need not be audited) covering a period of at least 12 months beginning after the Commission date hereof and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (iiotherwise satisfying the provisions of Section 11(a) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as Act (including, at the Underwriters may reasonably requestoption of the Company, Rule 158). (f) The Company will comply with all furnish to the undertakings contained in Representatives and counsel for the Underwriters, without charge, copies of the Registration StatementStatement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of any Preliminary Final Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and supplement thereto as the Representatives may reasonably request. (g) The Company represents and agrees that, except will arrange for the Approved FWPqualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities (provided that the Company will not be required to qualify to do business in any jurisdiction where it has is not now qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now subject), will arrange for the determination of the legality of the Securities for purchase by institutional investors and will pay the fee of the Financial Industry Regulatory Authority in connection with its review of the offering. (h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities, for printing and engraving fees, for fees charged by the Trustee, for the expenses, if any, incurred by the Underwriters in road shows, for any filing fee of the Financial Industry Regulatory Authority relating to the Securities and for expenses incurred in printing and distributing the Final Prospectus, any Preliminary Final Prospectuses and any supplements thereto to the Underwriters. The Company will pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r). (i) During the Prospectus Delivery Period, the Company will not, unless it obtains without the prior written consent of Grandviewthe Representatives, which consent prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Company would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Company will not be unreasonably withheld, conditioned or delayed, make file any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed Issuer Free Writing Prospectus with the CommissionCommission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, any electronic road show and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such free writing prospectus Free Writing Prospectus consented to by Grandview (including the Approved FWP) Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that (i) it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, Issuer Free Writing Prospectus and has complied and (ii) it will comply with the requirements said Rule of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission where requiredCommission, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that not, without the Shares are listed on the NASDAQ Capital Market at the time prior written consent of the Initial ClosingRepresentatives, and seeking and using its best efforts offer, sell, contract to maintain sell, pledge, or otherwise dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to effect any such listing for a period of at least three (3) years after transaction, until the ClosingClosing Date. (k) The Company shall retain a firm of independent certificate public accountantswill not take, acceptable directly or indirectly, any action designed to Grandviewor that would constitute or that might reasonably be expected to cause or result in, which will have under the responsibility for the preparation Exchange Act or otherwise, stabilization or manipulation of the financial statements and price of any security of the financial exhibits, if any, Company to be included in facilitate the Registration Statement and continuing to retain such accountants, sale or comparable accountants, for a period resale of at least three (3) years after the ClosingSecurities. (l) The Company shall will retain a transfer agent for copies of each Issuer Free Writing Prospectus that is not filed with the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the ClosingCommission in accordance with Rule 433. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after will use the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years net proceeds from the Closingoffering as set forth in the Disclosure Package and the Final Prospectus. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (Johnson Controls Inc), Underwriting Agreement (Johnson Controls Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters Placement Agents as follows: (a) The When the Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, ) pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview the Placement Agents promptly following such filing. (b) The Company will use commercially reasonable efforts to keep the Registration Statement effective at all times during the period commencing on the effective date of the Registration Statement and continuing thereafter until the closing of the sale of the Units and for at least six months thereafter, and until such later date that either (i) all Warrants shall have either been exercised in full or terminated or (ii) in the opinion of counsel, an exemption from the registration requirements of applicable federal and state securities laws is available for the issuance of all Securities and the resale thereof (the “Registration Period”). (c) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this AgreementRegistration Period, file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, except as required by law, unless a copy thereof shall first have been submitted to Grandview the Placement Agents within a reasonable period of time prior to the filing thereof and Grandview the Placement Agents shall not have reasonably and timely objected thereto in good faith. (cd) The Company will notify the Underwriters Placement Agents promptly, and will, if requested, confirm such notification in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effectiveeffective at any time during the Registration Period; (ii2) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectuses or for additional informationinformation at any time during the Registration Period; (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for that purpose or the threat thereof, at any time during the Registration Period; (iv4) of becoming aware of the occurrence of any event during the Registration Period that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares Securities for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters Placement Agents promptly of all such filings. (de) If, at any time when a Prospectus relating to the Shares Securities is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview the Placement Agents and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the UnderwritersPlacement Agents, without charge, such number of copies thereof as the Underwriters Placement Agents may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersPlacement Agents, and the Placement Agents agree to provide to each Investor, prior to the Closing, a copy of the Prospectus and any amendments or supplements thereto. (ef) The Company will furnish to the Underwriters Placement Agents and Underwriter Counseltheir counsel, without charge: charge (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment theretoStatement, including financial statements and schedules, and all exhibits thereto, thereto and (ii) so long as a prospectus relating to the Shares Securities is required to be delivered under the Securities Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Underwriters Placement Agents may reasonably request. (fg) The Company will comply with all the undertakings contained in the Registration Statement. (gh) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents, and unless counsel to the Company and the Placement Agents agree that the Company is not an issuer free writing prospectus,ineligible issueras defined in Rule 433 promulgated under the Securities Act, or that would and is otherwise constitute eligible to use a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented pursuant to by Grandview Rule 405; (including the Approved FWPi) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (hj) Prior to the sale of the Shares Units to the Investors, the Company will cooperate with Grandview the Placement Agents and Underwriter Counsel their counsel in connection with the registration or qualification of the Shares Securities for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Placement Agents may reasonably and timely request, if any; 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. (ik) The Company will apply the net proceeds from the offering and sale of the Offered Securities Units in substantially the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent will take all actions necessary to ensure that the Shares and the Warrant Shares are eligible for trading, when issued on the Company’s Common Stock and continue OTC Bulletin Board at the time of Closing, to retain the extent such transfer agent, or a comparable firm, for a period of three (3) years after the Closingactions are within its control. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares its Common Stock to facilitate the sale or resale of any of the SharesSecurities. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (qn) The Company shall supply Grandview and its counsel, at the Company’s costs, comply with a reasonable number of bound volumes all of the public offering materials within a reasonable time after terms and conditions set forth in the ClosingCompany Lock-Up Agreement, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingincluding without limitation, the Company will grant Grandview covenant that it shall not consent to any request by any other party subject to a lock-up agreement to permit the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved sale by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager party of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt shares of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeCommon Stock.

Appears in 2 contracts

Samples: Placement Agency Agreement (GeoVax Labs, Inc.), Placement Agency Agreement (GeoVax Labs, Inc.)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish you up to four signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits but including documents incorporated therein by reference, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement (including, without limitation, the issuance or filing of any term sheet within the meaning of Rule 434 under the Act) to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement (including, without limitation, the issuance or filing of any term sheet within the meaning of Rule 434 under the Act) to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending March 31, except for 1998 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of five years after the date of this Agreement, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the sale record holders of its Common Stock a financial report of the Company and its subsidiaries, if any, on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by independent certified public accountants, and (ii) to make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, summary financial statements as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year. (i) During the period referred to in paragraph (h), to furnish to you as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that in no event shall Inc., (vi) all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it and the Selling Stockholders hereunder for which provision is not now so qualified or to take any action which would subject it to general service of process otherwise made in any jurisdiction where it is not now so subjectthis Section. (ik) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will To use its best efforts to ensure that maintain the Shares are listed on the NASDAQ Capital Market at the time inclusion of the Initial Closing, and seeking and using its best efforts to maintain such listing Common Stock on The Nasdaq National Market (or on a national securities exchange) for a period of at least three (3) five years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation effective date of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingStatement. (l) The To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company shall retain a transfer agent for prior to the Company’s Common Stock and continue to retain such transfer agentClosing Date or any Option Closing Date, or a comparable firm, for a period of three (3) years after as the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pm) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (May & Speh Inc), Underwriting Agreement (May & Speh Inc)

Agreements of the Company. The Unless this Agreement is terminated in accordance with its terms, the Company covenants and agrees with the Underwriters as followsPurchasers: (a) The Registration Statement has become effective, and if Rule 430A is used or To advise the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview Purchasers promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by the Purchasers, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus Form S-4 or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Form S-4 or of the Prospectussuspension of qualification of the Remaining Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Form S-4 becomes effective, and (iv) of becoming aware of the occurrence of any event that in the judgment of if the Company makes any statement made in the is required to file a Rule 462(b) Registration Statement or after the Prospectus untrue in any material respect or that requires effectiveness of this Agreement, when the making of any changes in the Rule 462(b) Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionhas become effective. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyForm S-4, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings.time; (db) If, at To not file any time when a Prospectus relating post effective amendments to the Shares is required to be delivered under Form S–4 that changes any terms of the Securities ActExchange Offer, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, Offering or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, Restructuring without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandvieweach Purchaser, which consent will shall not be unreasonably withheld; provided, conditioned or delayed, make that any offer relating Purchaser that reasonably withholds its consent shall be deemed to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required no longer be party to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations.this Agreement; (hc) Prior to the sale any public offering of the Remaining Shares to the Investorsto, the Company will (i) cooperate with Grandview the Purchasers and Underwriter Counsel counsel for the Purchasers in connection with the registration or qualification of the Remaining Shares for offer and sale by the several Purchasers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Purchasers may reasonably request, if any(ii) use it commercially reasonable best efforts to continue such registration or qualification in effect so long as required for distribution of the Remaining Shares, and (iii) file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be obligated required in connection therewith to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or to take any action which that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Form S-4, or the offering or sale of the Remaining Shares, in any jurisdiction where in which it is not now so subject.; (d) To use its commercially reasonable best efforts to list the Common Stock on the New York Stock Exchange or the NASDAQ Stock Market as promptly as practicable; provided that the Company shall not be obligated to apply for such listing until such time as it reasonably believes it meets the applicable listing criteria; (e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) The Company will apply the net proceeds from fees, disbursements and expenses of its counsel and its accountants in connection with the offering registration and delivery of the Remaining Shares under the Securities Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Form S-4 (including financial statements and exhibits) and all amendments and supplements to any of the foregoing, (ii) all costs and expenses related to the transfer and delivery of the Remaining Shares to the Purchasers, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the purchase, sale or delivery of the Remaining Shares, (iv) all expenses in connection with the registration or qualification of the Remaining Shares for offer and sale under the securities or Blue Sky laws of the Offered Securities several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith, (v) all fees and expenses in connection with the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds preparation and filing of the Offering will be used registration statement on Form 8-A relating to pay outstanding loans from officersthe Preferred Stock and all costs and expenses incident to the listing of the Remaining Shares on the NASDAQ Stock Market or the New York Stock Exchange, directors or stockholders.if applicable, (vi) the cost of printing certificates representing the Remaining Shares, (vii) the costs and charges of any transfer agent, registrar and/or depositary, and (viii) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section; (jf) The Company will To use its commercially reasonable best efforts to ensure that do and perform all things required or necessary to be done and performed under this Agreement by the Shares are listed on Company prior to the NASDAQ Capital Market Closing Date, and to satisfy all conditions precedent to the delivery of the Remaining Shares; (g) If the Form S-4 at the time of the Initial Closingeffectiveness of this Agreement does not cover all of the Remaining Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Remaining Shares not so covered in compliance with Rule 462(b) as promptly as practicable, and seeking in any event prior to the expiration of the Exchange Offer, and using its best efforts to maintain pay to the Commission the filing fee for such listing Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for a period the payment of at least three (3such fee pursuant to Rule 111(b) years after under the Closing.Securities Act; and (kh) The Company That it shall retain a firm of independent certificate public accountants, acceptable provide notice to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale Purchasers of any breach of this Agreement and seek to cure the Sharessame, in each case as promptly as practicable. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Foster Wheeler LTD), Stock Purchase Agreement (Foster Wheeler Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you five (5) signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Securities ActProspectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. The Company shall bear the cost of any amendment to the Registration Statement or amendment or supplement to, or delivery of, the Company becomes aware Prospectus pursuant to Section 5(c) above, this Section 5(d) or Section 5(e) below for any such amendment or supplement made within twelve months of the occurrence date of this Agreement, and thereafter, the Company's out-of-pocket costs incurred pursuant to any such amendment or supplement shall be borne by the Underwriters. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, except for 2000 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that in no event shall Inc., (vi) all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it and the Selling Stockholders hereunder for which provision is not now so qualified or to take any action which would subject it to general service otherwise made in this Section. The provisions of process in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which this Section shall not be unreasonably withheld, conditioned supersede or delayed, no proceeds otherwise affect any agreement that the Company and the Selling Stockholders may otherwise have for allocation of the Offering will be used to pay outstanding loans from officers, directors or stockholderssuch expenses among themselves. (j) The Company will To use its best efforts to ensure that list for quotation the Shares are listed on the NASDAQ Capital Nasdaq National Market at and to maintain the time listing of the Initial Closing, and seeking and using its best efforts to maintain such listing Shares on the Nasdaq National Market for a period of at least three (3) years after the Closingdate of this Agreement. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (Nextcard Inc), Underwriting Agreement (Nextcard Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters Placement Agent as follows: (a) The When the Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, ) pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview the Placement Agent promptly following such filing. (b) The Company will use commercially reasonable efforts to keep the Registration Statement effective at all times during the period commencing on the effective date of the Registration Statement and continuing thereafter until the closing of the sale of the Units and for at least six months thereafter, and until such later date that either (i) all Warrants shall have either been exercised in full or terminated or (ii) in the opinion of counsel, an exemption from the registration requirements of applicable federal and state securities laws is available for the issuance of all Securities and the resale thereof (the “Registration Period”). (c) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this AgreementRegistration Period, file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, except as required by law, unless a copy thereof shall first have been submitted to Grandview the Placement Agent within a reasonable period of time prior to the filing thereof and Grandview the Placement Agent shall not have reasonably and timely objected thereto in good faith. (cd) The Company will notify the Underwriters Placement Agent promptly, and will, if requested, confirm such notification in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effectiveeffective at any time during the Registration Period; (ii2) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectuses or for additional informationinformation at any time during the Registration Period; (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for that purpose or the threat thereof, at any time during the Registration Period; (iv4) of becoming aware of the occurrence of any event during the Registration Period that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares Securities for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters Placement Agent promptly of all such filings. (de) If, at any time when a Prospectus relating to the Shares Securities is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agent, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview the Placement Agent and, subject to Section 4(b5(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the UnderwritersPlacement Agent, without charge, such number of copies thereof as the Underwriters Placement Agent may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersPlacement Agent, and the Placement Agent agrees to provide to each Investor, prior to the Closing, a copy of the Prospectus and any amendments or supplements thereto. (ef) The Company will furnish to the Underwriters Placement Agent and Underwriter Counselits counsel, without charge: charge (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment theretoStatement, including financial statements and schedules, and all exhibits thereto, thereto and (ii) so long as a prospectus relating to the Shares Securities is required to be delivered under the Securities Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Underwriters Placement Agent may reasonably request. (fg) The Company will comply with all the undertakings contained in the Registration Statement. (gh) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agent, and unless counsel to the Company and the Placement Agent agree that the Company is not an issuer free writing prospectus,ineligible issueras defined in Rule 433 promulgated under the Securities Act, or that would and is otherwise constitute eligible to use a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented pursuant to by Grandview Rule 405; (including the Approved FWPi) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (hj) Prior to the sale of the Shares Units to the Investors, the Company will cooperate with Grandview the Placement Agent and Underwriter Counsel its counsel in connection with the registration or qualification of the Shares Securities for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Placement Agent may reasonably and timely request, if any; 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. (ik) The Company will apply the net proceeds from the offering and sale of the Offered Securities Units in substantially the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent will take all actions necessary to ensure that the Shares and the Warrant Shares are listed or approved for listing on NYSE Amex Equities at the Company’s Common Stock and continue time of Closing, with such listing to retain such transfer agent, occur at the Closing or a comparable firm, for a period of three (3) years after the Closingas soon as practicable thereafter. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares its Common Stock to facilitate the sale or resale of any of the SharesSecurities. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (qn) The Company shall supply Grandview and its counsel, at the Company’s costs, comply with a reasonable number of bound volumes all of the public offering materials within a reasonable time after terms and conditions set forth in the ClosingCompany Lock-Up Agreement, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingincluding without limitation, the Company will grant Grandview covenant that it shall not consent to any request by any other party subject to a lock-up agreement to permit the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved sale by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager party of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt shares of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeCommon Stock.

Appears in 2 contracts

Samples: Placement Agency Agreement (GeoVax Labs, Inc.), Placement Agency Agreement (GeoVax Labs, Inc.)

Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows: (a) The Registration Statement has become effectiveCompany will prepare a supplement to the Prospectus setting forth the amount of the Notes covered thereby and the terms thereof not otherwise specified in the Prospectus, the price at which the Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and reallowances, if any, and if Rule 430A is used or such other information as the filing Underwriters and the Company deem appropriate in connection with the offering of the Prospectus is otherwise required under Rule 424(b)Notes, and the Company will timely file the Prospectus (properly completed if Rule 430A has been used), subject such supplement to the prior approval of Grandview, prospectus with the SEC pursuant to Rule 424(b) within under the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Act, but the Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, not file any amendment or supplement amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus Prospectus, unless a copy thereof it shall first have been submitted to Grandview within a reasonable period delivered copies of time prior such amendments or supplements to the filing thereof and Grandview Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement or if the Underwriters shall not have reasonably objected thereto in good faith. (c) The promptly after receipt thereof; the Company will notify immediately advise the Underwriters promptly, and will, if requested, confirm such notification in writing: or the Underwriters' counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement becomes effective; has become or will become effective and (ii) of any request by order or communication suspending or preventing, or threatening to suspend or prevent, the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) offer and sale of the issuance by the Commission of any stop order preventing Notes or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for or examinations that purpose may lead to such an order or the threat thereof; (iv) of becoming aware communication, whether by or of the occurrence of SEC or any event that in the judgment of authority administering any state securities or Blue Sky law, as soon as the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements thereinis advised thereof, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with prevent the provisions issuance of and make all requisite filings with the Commission pursuant to said Rule 430A any such order or communication and to notify the Underwriters promptly of all such filingsobtain as soon as possible its lifting, if issued. (db) If, at any time when a the Prospectus relating to the Shares Notes is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company promptly will promptly notify Grandview and, subject to Section 4(b) hereof, the Representative of such event and will promptly prepare and file with the CommissionSEC, at the Company’s its own expense, an amendment to the Registration Statement or an amendment or supplement to the such Prospectus that corrects will correct such statement or omission or effects an amendment that will effect such compliance compliance. Neither the Representative's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof. (c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes. (d) The Company will deliver furnish to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with (including all documents and exhibits thereto or incorporated by reference therein), the Commission and each amendment thereto, including financial statements and schedulesProspectus, and all exhibits thereto, (ii) so long as a prospectus amendments and supplements to such documents relating to the Shares is required to be delivered under the Securities ActNotes, as many copies of the Prospectus or any amendment or supplement thereto in each case in such quantities as the Underwriters may reasonably request. (e) [Intentionally Omitted] (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed cooperate with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, Underwriters and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel their counsel in connection with the registration qualification of, or qualification procurement of exemptions with respect to, the Shares Notes for offer offering and sale by the Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriters may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; provided, 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 suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (ig) The Company will apply consents to the net proceeds from use, in accordance with the offering securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and sale by dealers, of the Offered Securities in Prospectus furnished by the manner set forth in Company. (h) To the Prospectus under extent, if any, that the caption “Use rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of Proceedsdocuments or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds (i) So long as any of the Offering Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be used filed with the SEC pursuant to pay outstanding loans the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from officers, directors or stockholderstime to time. (j) The Company will use its best efforts If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to ensure that any provisions hereof (otherwise than by notice given by the Shares are listed Representative terminating this Agreement pursuant to Section 8 or Section 9 hereof) or if this Agreement shall be terminated by the Representative because of any failure or refusal on the NASDAQ Capital Market at the time part of the Initial ClosingCompany to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and seeking and using its best efforts to maintain such listing expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for a period loss of at least three (3) years after the Closingprofits or otherwise. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have net proceeds from the responsibility for the preparation sale of the financial statements and Notes hereunder will be applied substantially in accordance with the financial exhibits, if any, to be included description set forth in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectus. (l) The Except as stated in this Agreement and in the Prospectus, the Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agenthas not taken, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Notes to facilitate the sale or resale of any the Notes. (m) For a period from the date of this Agreement until the retirement of the SharesNotes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants' reports furnished to the Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Trustee or the Company. (n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the Xxxxnced Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Financed Xxxdent Loans to show the absolute ownership by the Trustee, as eligible lender of, and the interest of the Company in, the initial Financed Student Loans, and from and after each Closing Date the Company will take, or cause the Servicer, SLC and SLC Receivables to take, as the case may be, such actions with respect to the respective records of each with regard to any additional acquired Student Loans at the time of the acquisition thereof by the Trustee on behalf of the Company and the Company shall not take, or shall permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Financed Student Loans, other than as permitted by the Basic Documents. (o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company or any entity affiliated, directly or indirectly, with the Company. (p) The Company shallIf, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the reasonable request of the Underwriters1933 Act, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date then, immediately following the Initial Closing Dateexecution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted. (q) The Company shall supply Grandview and its counselAs soon as practicable, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time but not later than 16 months after the Closing, as well as a reasonable number date of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingthis Agreement, the Company will grant Grandview make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the right later of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders effective date of the CompanyRegistration Statement, (ii) shares issued in payment the effective date of the consideration for an acquisition most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) conventional banking arrangements and commercial debt financingthe date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeAct.

Appears in 2 contracts

Samples: Underwriting Agreement (SLC Student Loan Receivables I Inc), Underwriting Agreement (SLC Student Loan Asset Backed Notes Series 2002-2)

Agreements of the Company. The Company covenants and agrees with the Underwriters Underwriter[s] as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandviewthe Underwriter[s], pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview the Underwriter[s] promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview the Underwriter[s] within a reasonable period of time prior to the filing thereof and Grandview the Underwriter[s] shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters Underwriter[s] promptly, and will, if requested, confirm such notification in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effective; (ii2) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional information; (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv4) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters Underwriter[s] promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Underwriter[s], include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Underwriter[s], include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Underwriter[s], at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and RegulationsRules, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, the Underwriter[s] and will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the UnderwritersUnderwriter[s], without charge, such number of copies thereof as the Underwriters Underwriter[s] may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersUnderwriter[s], and the Underwriter[s] agree[s] to provide to each Investor, prior to the Closing, a copy of the Prospectus and any amendments or supplements thereto. (e) The Company will furnish to the Underwriters Underwriter[s] and Underwriter Counsel[its][their] counsel, without charge: charge (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Underwriters Underwriter[s] may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Issuer Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under without the Securities Act, and has complied and will comply with prior written consent of the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. Underwriter[s]. (h) The Company will retain in accordance with the Rules and Regulations all Permitted Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and RegulationsRules. (hi) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Underwriter[s] and Underwriter Counsel [its][their] counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriter[s] may reasonably request, if any; 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. (ij) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (jk) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market NYSE Amex at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (Xstream Systems Inc), Underwriting Agreement (Xstream Systems Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that obtain the Shares are listed on the NASDAQ Capital Market withdrawal or lifting of such order at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closingearliest possible time. (kb) The Company shall retain a firm To furnish to you four signed copies of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement as first filed with the Commission and continuing of each amendment to retain such accountantsit, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holdersincluding all exhibits, and continue to retain furnish to you and each Underwriter designated by you such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.conformed

Appears in 2 contracts

Samples: Underwriting Agreement (Crown Media Holdings Inc), Underwriting Agreement (Crown Media Holdings Inc)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as followsthat: (a) The Registration Statement has become effective, During the period beginning with the Initial Sale Time and if Rule 430A is used or ending on the filing later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be no longer required by law to be delivered in connection with sales the initial offering or sale of the Shares by an underwriter or dealer Securities (including in connection with circumstances where such requirement may be satisfied pursuant to Rule 172) (the offering contemplated by this Agreement“Prospectus Delivery Period”), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless, in each case, the Company has furnished the Representatives a copy for their review prior to such time, and the Company will not file any such proposed amendment or supplement to which the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior Representatives reasonably object. Subject to the filing thereof foregoing sentence, the Company will cause the Final Prospectus, properly completed, and Grandview shall not have reasonably objected any supplement thereto in good faithto be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings. (cb) The During the Prospectus Delivery Period, the Company will notify promptly advise the Underwriters promptly, and will, if requested, confirm such notification in writing: Representatives (i) when the Final Prospectus and any post-effective Issuer Free Writing Prospectus, and any supplements or amendments thereto, have been filed with the Commission pursuant to Rules 424(b) and 433, respectively, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement has been filed or becomes effective; , (iiiii) of any request by the Commission for any amendments to amendment of the Registration Statement or any amendment or supplements supplement to the Final Prospectus or for any additional information; , (iiiiv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation institution or threatening of any proceedings proceeding for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of the receipt by the Company of any notification with respect to any the suspension of the qualification of the Shares Securities for offer and sale in any jurisdictionjurisdiction or the initiation or threatening of any proceeding for such purpose. If at The Company will use its reasonable best efforts to prevent the issuance of any time such stop order and, if issued, to obtain as soon as possible the Commission shall issue any order suspending withdrawal thereof, including, if necessary, and subject to the effectiveness first sentence of paragraph (a) of this Section 4, by filing an amendment to the Registration Statement in connection with the offering contemplated hereby, the or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable. (c) The Company will make every reasonable effort to obtain prepare a final term sheet, containing solely a description of the withdrawal of any Securities, as set forth in Schedule IV hereto, and will file such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, term sheet pursuant to Rule 430A, it will use its best efforts to comply with 433(d) within the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all time required by such filingsRule. (d) If, at any time when a during the Prospectus relating to the Shares is required to be delivered under the Securities ActDelivery Period, the Company becomes aware of the occurrence of any event occurs as a result of which which, in the opinion of counsel for the Underwriters or counsel for the Company, the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, made not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time shall be necessary to amend the Registration Statement or supplement the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus or the Registration Statement to comply with the Securities Act or the Rules Exchange Act or the respective rules and Regulationsregulations thereunder, the Company promptly will promptly (i) notify Grandview andthe Representatives of such event or, subject to Section 4(bin circumstances where the Company’s obligations under this paragraph (d) hereofarise from an opinion of counsel for the Underwriters, will promptly notify the Representatives of such event after the Company receives such opinion, (ii) prepare and file with the Commission, at subject to the Company’s expensefirst sentence of paragraph (a) of this Section 4, an amendment to the Registration Statement Statement, a new registration statement or an amendment or supplement to the Disclosure Package or the Final Prospectus that corrects will correct such statement or omission or effects effect such compliance and will deliver compliance, (iii) use its reasonable best efforts to have any amendment to the Underwriters, without charge, such number of copies thereof Registration Statement or new registration statement declared effective as the Underwriters may reasonably request. The Company consents soon as practicable and (iv) supply any supplemented Final Prospectus to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersRepresentatives in such quantities as may be reasonably requested. (e) The As soon as practicable, the Company will furnish make generally available to its security holders and to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy Representatives an earnings statement or statements of the Registration Statement as originally filed with Company and its subsidiaries (which need not be audited) covering a period of at least 12 months beginning after the Commission date hereof and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (iiotherwise satisfying the provisions of Section 11(a) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as Act (including, at the Underwriters may reasonably requestoption of the Company, Rule 158). (f) The Company will comply with all furnish to the undertakings contained in Representatives and counsel for the Underwriters, without charge, copies of the Registration StatementStatement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of any Preliminary Final Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and supplement thereto as the Representatives may reasonably request. (g) The Company represents and agrees that, except will arrange for the Approved FWPqualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities (provided that the Company will not be required to qualify to do business in any jurisdiction where it has is not now qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now subject), will arrange for the determination of the legality of the Securities for purchase by institutional investors and will pay any fee of the Financial Industry Regulatory Authority in connection with its review of the offering. (h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities, for printing and engraving fees, for fees charged by the Trustee, for the expenses, if any, incurred by the Underwriters in road shows, for any filing fee of the Financial Industry Regulatory Authority relating to the Securities and for expenses incurred in printing and distributing the Final Prospectus, any Preliminary Final Prospectuses and any supplements thereto to the Underwriters. The Company will pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r). (i) During the Prospectus Delivery Period, the Company will not, unless it obtains without the prior written consent of Grandviewthe Representatives, which consent prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Company would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Company will not be unreasonably withheld, conditioned or delayed, make file any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed Issuer Free Writing Prospectus with the CommissionCommission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, any electronic road show and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such free writing prospectus Free Writing Prospectus consented to by Grandview (including the Approved FWP) Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that (i) it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, Issuer Free Writing Prospectus and has complied and (ii) it will comply with the requirements said Rule of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission where requiredCommission, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that not, without the Shares are listed on the NASDAQ Capital Market at the time prior written consent of the Initial ClosingRepresentatives, and seeking and using its best efforts offer, sell, contract to maintain sell, pledge, or otherwise dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to effect any such listing for a period of at least three (3) years after transaction, until the ClosingClosing Date. (k) The Company shall retain a firm of independent certificate public accountantswill not take, acceptable directly or indirectly, any action designed to Grandviewor that would constitute or that might reasonably be expected to cause or result in, which will have under the responsibility for the preparation Exchange Act or otherwise, stabilization or manipulation of the financial statements and price of any security of the financial exhibits, if any, Company to be included in facilitate the Registration Statement and continuing to retain such accountants, sale or comparable accountants, for a period resale of at least three (3) years after the ClosingSecurities. (l) The Company shall will retain a transfer agent for copies of each Issuer Free Writing Prospectus that is not filed with the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the ClosingCommission in accordance with Rule 433. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after will use the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years net proceeds from the Closingoffering as set forth in the Disclosure Package and the Final Prospectus. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (Johnson Controls Inc), Underwriting Agreement (Johnson Controls Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of GrandviewAegis, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview Aegis promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview Aegis within a reasonable period of time prior to the filing thereof and Grandview Aegis shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-post- effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview Aegis and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s 's expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of GrandviewAegis, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an "issuer free writing prospectus," as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a "free writing prospectus," as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview Aegis (including the Approved FWP) is hereinafter referred to as a "Permitted Free Writing Prospectus." The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an "issuer free writing prospectus," as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview Aegis and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview Aegis may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption "Use of Proceeds." Without the written consent of GrandviewAegis, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to GrandviewAegis, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s 's Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s 's Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview Aegis and its counsel, at the Company’s 's costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by GrandviewAegis. (r) Upon the Closing, the Company will grant Grandview Aegis the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview Aegis accepts such right of first refusal, Grandview Aegis shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview Aegis fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview Aegis will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (Iron Eagle Group, Inc.), Underwriting Agreement (Iron Eagle Group, Inc.)

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows: (a) The Registration Statement has become effectiveCompany agrees to allocate and remit funds received from customers for the benefit of the each of the Receivables Facility SPV, each Administrative Agent and each Securitization SPV, respectively, and if Rule 430A is used or shall control the filing movement of such funds out of the Prospectus is otherwise required under Rule 424(b)Collection Accounts (such allocation, remittance and deposits hereafter called the Company will file “Allocation Services”) in accordance with the Prospectus (properly completed if Rule 430A has been used), subject terms of this Agreement and the Credit and Collection Policy. The same entity must always act as servicer in the performance of the Allocation Services with respect to the prior approval of Grandview, pursuant to Rule 424(b) within Joined Party Transaction Documents and the prescribed time period and will provide a copy of such filing to Grandview promptly following such filingReceivables Documents. (b) The In the event that any Joined Party is entitled to, and desires to, exercise its right, pursuant to its Joined Party Transaction Documents, to replace the Company will notas servicer, during such period collection agent or similar role thereunder, or in the event that the RFA Administrative Agent is entitled to, and desires to, exercise its right to replace the Company as Servicer, and therefore to terminate the role of the Company as the Prospectus would be required by law to be delivered in connection with sales provider of the Shares by an underwriter or dealer Allocation Services hereunder, the party desiring to exercise such right shall promptly give written notice to the other Administrative Agents (the “Servicer Notice”) in connection accordance with the offering contemplated by notice provisions of this Agreement, file any amendment or supplement Agreement and consult with the other Administrative Agents with respect to the Registration Statement or Person who would replace the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period Company as the provider of time prior the Allocation Services hereunder. Any successor to the filing thereof Company as the provider of the Allocation Services hereunder shall be agreed to by the Administrative Agents within ten (10) Business Days of the date of the Servicer Notice, and Grandview such successor shall not have reasonably objected thereto be subject to satisfaction of the Rating Agency Condition and otherwise satisfy the provisions of the respective Joined Party Transaction Documents and the Receivables Documents. The Person named as replacement collection agent in good faithaccordance with this Section 6 is referred to herein as the “Replacement Collection Agent. (c) The Company will notify Anything in this Agreement to the Underwriters promptlycontrary notwithstanding, any action taken by any Administrative Agent to appoint a Replacement Collection Agent pursuant to this Section 6 shall be subject to the Rating Agency Condition and willthe consents, if requestedrequired by law, confirm such notification in writing: (i) when regulation, regulatory order or of the California Public Utility Commission and as may be required by the Receivables Documents or any post-effective amendment to the Registration Statement becomes effective; (ii) Joined Party Transaction Document. The parties hereto acknowledge and agree that any approval or consent of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for rating agency that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus is required in order to make satisfy the statements therein, in light of the circumstances in which they are made, Rating Agency Condition is not misleading; and (v) of receipt by the Company of any notification with respect subject to any suspension standard of commercial reasonableness, and the qualification of parties are bound to satisfy this condition whether or not the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filingsrating agencies are unreasonable or arbitrary. (d) If, at any time when a Prospectus relating Anything in this Agreement to the Shares is required to be delivered under the Securities Actcontrary notwithstanding, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment obligations to the Registration Statement or an amendment or supplement to Collection Account Agent hereunder shall survive notwithstanding that a Replacement Collection Agent has replaced the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof Company as the Underwriters may reasonably request. The Company consents to the use provider of the Prospectus or any amendment or supplement thereto by the UnderwritersAllocation Services hereunder. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Collection Account Intercreditor Agreement (PG&E Recovery Funding LLC), Collection Account Intercreditor Agreement (PG&E Corp)

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows: (a) The Company agrees to use its commercially reasonable efforts to commence the Exchange Offer and the Consent Solicitation as promptly as practicable, to do all things reasonably necessary and appropriate in furtherance thereof, including filing any related documents with the Securities and Exchange Commission (the “Commission”), and to cause the Registration Statement has become effective, and if Rule 430A is used or (as defined below) to be declared effective under the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview Securities Act as promptly following such filingas practicable. (b) The Company will notshall file, during such period as on or before April 15, 2003, with the Prospectus would be required by law Commission a Registration Statement on Form S-4 or any other appropriate form (the “Registration Statement”) under the Securities Act covering the offering of the shares of Broadwing Stock to be delivered offered in connection with sales exchange for the shares of the Shares by an underwriter or dealer Preferred Stock in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faithExchange Offer. (c) The Nothing in this Agreement shall be deemed to prevent the Company will notify or BCI from taking, or failing to take, any action that it is obligated to take (or fail to take) in the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) performance of any request by fiduciary or similar duty which the Commission for Company or BCI owes to any amendments to other Person; provided, however, that such fiduciary or similar duty shall apply only in the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, circumstance that BCI or the initiation Company receives an unsolicited offer or expression of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification bona fide interest from a third party with respect to a potential merger, acquisition, business combination or other strategic combination involving BCI or the Company; it being understood and agreed that if any suspension such action (or failure to act) that the board of directors of BCI or the Company determines to be in the best interests of BCI or the Company would alter the terms of the qualification Exchange Offer and Consent Solicitation in a manner not permitted by Section 6, this Agreement and all of the Shares for offer obligations and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness undertakings of the Registration Statement parties set forth in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of this Agreement shall terminate and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all such filingsexpire. (d) If, at any time when The Company shall provide the Stockholders with a Prospectus relating reasonable opportunity to review and comment upon the form and substance of the documents and other materials that the Company shall distribute to the Shares is required Stockholders to be delivered under effect the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules Exchange Offer and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersConsent Solicitation. (e) The Company will furnish provide the Stockholders with written notice of any executed amendments, waivers or supplements (other than any amendments, waivers or supplements relating to immaterial, and non-economic matters) to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy terms of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, Sale Agreement (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under below) immediately after the Securities Actexecution of any such amendment, waiver or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keepingsupplement. The Company hereby acknowledges that its failure to provide such notice will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for preclude the Company’s Common Stock and continue right to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters terminate this Agreement pursuant to Section 7 prior to any Closing Date following the Initial Closing Date7(vi). (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Exchange and Voting Agreement (Broadwing Inc), Exchange and Voting Agreement (Broadwing Communications Inc)

Agreements of the Company. The Company covenants agrees that, so long as this Agreement has not been terminated as provided herein, unless otherwise permitted or required by this Agreement or consented to in writing by the Requisite Consenting 10% Noteholders and agrees with the Underwriters as followsRequisite Consenting Cross Holders, it shall: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject use commercially reasonable efforts to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filingmeet all deadlines set forth in Section 5 hereof. (b) The Company will notnot directly or indirectly seek, during such period as the Prospectus would be required by law to be delivered in connection with sales solicit, or support any other plan, sale, proposal, or offer of dissolution, winding up, liquidation, reorganization, merger, or restructuring of the Shares by an underwriter Company that could reasonably be expected to prevent, delay or dealer in connection with impede the offering restructuring of the Company as contemplated by the Amended Plan or that is inconsistent with this AgreementAgreement (collectively, file any amendment or supplement to an “Alternative Plan”); provided, that the Registration Statement or Company may subsequently solicit and negotiate a proposal for an Alternative Plan, but only if such Alternative Plan expressly provides for payment of 10% Notes Claims in full in cash on the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period effective date of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith.such Alternative Plan; (c) The Company will notify not amend the Underwriters promptlyAmended Plan in a manner adverse to the Consenting 10% Noteholders, provided, that changes adverse to the Consenting Cross Holders may not be made without the reasonable consent of the Requisite Consenting Cross Holders (as defined herein); (d) unless provided under Section 4(b), not take any action that is intended or is reasonably likely to interfere with consummation of, the Amended Plan and willthe Restructuring Transactions embodied in the Amended Plan and Term Sheet; (e) unless provided under Section 4(b), if requestedsupport and complete the Restructuring Transactions substantially on the terms set forth in the Amended Plan, confirm with such notification in writingterms subject to changes reasonably acceptable to the Requisite Consenting 10% Noteholders; (f) provide the Consenting 10% Noteholders with copies of all material executory contracts, unexpired leases, employment agreements and new employment agreements, incentive plans, employee benefits plans, performance plans and retention programs to be assumed by the Amended Plan (collectively, the “Material Assumed Contracts”), with assumption of Material Assumed Contracts subject to the reasonable consent of the Requisite Consenting 10% Noteholders (as defined herein); (g) provide the Consenting Noteholders with ongoing consultation rights and the right to propose modifications to the terms of the Amended Plan and Disclosure Statement, with any such modifications: (i) when any post-effective amendment being reasonably satisfactory in form and substance to the Registration Statement becomes effective; Company, the Requisite Consenting 10% Noteholders, and (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements extent adverse to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview andConsenting Cross Holders, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use reasonable consent of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations.Requisite Consenting Cross Holders; (h) Prior pay all reasonable and documented fees and expenses incurred by: (i) the Consenting 10% Noteholders for their employment of: (A) Xxxxx Xxxxxxx LLP (“Xxxxx Xxxxxxx”), as legal counsel; (B) Young Xxxxxxx Stargatt & Xxxxxx, LLP (“YCST”), as Delaware counsel; and (C) Duff & Xxxxxx Securities, LLC, as financial advisor (“D&P”) pursuant to the sale terms of D&P’s engagement letter dated June 30, 2011 (the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any“D&P Fee Letter”); provided, that in no event shall as of January 1, 2012, and going forward all reasonable and document D&P monthly fees and expenses are to be paid pursuant to the Alternative Plan Trigger terms of the D&P Fee Letter; provided further, that the Company will use commercially reasonable efforts to pay all outstanding reasonable and documented fees and expenses of Xxxxx Xxxxxxx, YCST, and D&P as of the Approval Order and shall continue to pay such fees in full monthly thereafter in accordance with existing practice and the Stipulation, Agreement, and Final Order Granting Adequate Protection under Sections 361, 362, 363 and 507 of the Bankruptcy Code, dated June 30, 2011 [Docket No. 78] (the “Stipulation”), except D&P’s Deferred Restructuring Fee, which shall be obligated payable upon the Effective Date of the Amended Plan; and (ii) the Consenting Cross Holders, up to qualify $1.75 million, for their employment of counsel and financial advisors, with the allocation of such amount 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 subjectbe agreed upon amongst the Consenting Cross Holders. (i) The Company will apply subject to the net proceeds from the offering and sale requirements of the Offered Securities Bankruptcy Code for notice, hearing and Court approval, among other things, operate its business in the manner set forth in ordinary course taking into account the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds terms of the Offering will be used to pay outstanding loans from officersAmended Plan, directors or stockholders.Term Sheet and the Chapter 11 Cases; (j) The Company will use its best efforts to ensure that unless otherwise required by the Shares are listed Bankruptcy Court, keep confidential and cause the amount of 10% Notes Claims and/or 8.625% Notes Claims, as applicable, held by any Consenting Noteholder identified on the NASDAQ Capital Market at signature pages attached hereto to be redacted to the time of extent this Agreement is filed on the Initial Closingdocket maintained in the Chapter 11 Cases, and seeking and using not disclose to any third party the principal amount of 10% Notes Claims and/or 8.625% Notes Claims, as applicable, set forth below each Consenting Noteholder’s name on the signature pages hereof (or below its best efforts name on the signature page of a Joinder Agreement executed by a Consenting Noteholder that becomes a Party to maintain such listing for a period of at least three (3) years this Agreement after the Closing.Execution Date); (k) The Company shall retain if a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation member of the financial statements and Company’s management knows of a breach by the financial exhibitsCompany in any material respect of any of the obligations, if anyrepresentations, to be included in the Registration Statement and continuing to retain such accountantswarranties, or comparable accountantscovenants of the Company set forth in this Agreement, for a period furnish prompt written notice (and in any event within five (5) business days of at least three (3such actual knowledge) years after to counsel to the Closing.Consenting Noteholders; and (l) The Company shall retain in the event there is a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at dispute regarding whether any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and Consenting Noteholder is unreasonably withholding its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingconsent, the Company will grant Grandview shall seek prompt resolution of said dispute in the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeBankruptcy Court.

Appears in 2 contracts

Samples: Plan Support Agreement, Plan Support Agreement (NBC Acquisition Corp)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that obtain the Shares are listed on the NASDAQ Capital Market withdrawal or lifting of such order at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closingearliest possible time. (kb) The Company shall retain a firm of independent certificate public accountants, acceptable To furnish to Grandview, which will have the responsibility for the preparation you four signed copies of the financial statements Registration Statement as first filed with the Commission and the financial of each amendment to it, including all exhibits, if anyand to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to be included you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and continuing not to retain such accountants, make any amendment or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered supplement to the Underwriters pursuant Prospectus of which you shall not previously have been advised or to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.which

Appears in 2 contracts

Samples: Underwriting Agreement (P F Changs China Bistro Inc), Underwriting Agreement (P F Changs China Bistro Inc)

Agreements of the Company. The Company covenants and hereby agrees with the Underwriters Underwriter as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Bonds for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when such Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If time. (b) To furnish the Company has omitted any information from Underwriter two (2) signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits and documents incorporated therein by reference, and to furnish to the Underwriter such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits but including documents incorporated therein by reference, as the Underwriter may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to the Underwriter, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which the Underwriter shall not previously have been advised or to which the Underwriter shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Securities by the Underwriter, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriter a Prospectus relating to the Shares prospectus is required by law to be delivered under in connection with sales by the Securities ActUnderwriter or a dealer, to furnish in New York City to the Company becomes aware Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated by reference, as the Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessaryso that the Prospectus will comply with applicable law, in the reasonable judgment of counsel and to furnish to the Company or Underwriter Counsel, at and to any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Company will comply with all Prior to any public offering of the undertakings contained in the Registration Statement. (g) The Company represents and agrees thatBonds, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed cooperate with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, Underwriter and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel its counsel in connection with the registration or qualification of the Shares Bonds for offer and sale by the Underwriter and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriter may reasonably request, if anyto continue such registration or qualification in effect so long as required for distribution of the Bonds and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be obligated required in connection therewith to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or to take any action which that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Bonds, in any jurisdiction where in which it is not now so subject. (g) To mail and make generally available to its security holders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 1999 that shall satisfy the provisions of Section 11(a) of the Act, and to advise the Underwriter in writing when such statement has been so made available. (h) So long as the Bonds are outstanding, (i) The to mail and make generally available as soon as practicable, but not later than 120 days, after the end of each fiscal year to the record holders of the Bonds a financial report of the Company will apply and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the net proceeds end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by independent public accountants and (ii) to mail and make generally available as soon as practicable, but not later than 45 days, after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the offering and sale beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the Offered Securities in preceding year. (i) So long as the manner set forth in Bonds are outstanding, to furnish to the Prospectus under Underwriter as soon as available copies of all reports or other communications furnished to its security holders or furnished to or filed with the caption “Use Commission or any national securities exchange on which any class of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds securities of the Offering will be used to pay outstanding loans from officers, directors or stockholdersCompany is listed and such other publicly available information concerning the Company and its subsidiaries as the Underwriter may reasonably request. (j) The Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Bonds under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriter and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Bonds to the Underwriter, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Bonds, (iv) all expenses in connection with the registration or qualification of the Bonds for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriter in connection with the review and clearance of the offering of the Bonds by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Bonds and all costs and expenses incident to the listing of the Bonds on any national securities exchanges and/or foreign securities exchanges, (vii) the cost of printing the Bonds, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Bonds, (x) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Bonds and (xi) all other costs and expenses incident to the performance of the obligations of the Company will hereunder for which provision is not otherwise made in this Section. (k) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company substantially similar to the Bonds, other than (i) the Bonds, (ii) securities issued under the Existing Mortgage (as defined in the Indenture), (iii) commercial paper issued in the ordinary course of business and (iv) promissory notes issued for working capital purposes under the Company's existing bank credit facilities, without the prior written consent of the Underwriter. (l) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Bonds. (m) To use its best efforts to ensure that do and perform all things required or necessary to be done and performed under this Agreement by the Shares are listed on Company prior to the NASDAQ Capital Market Closing Date and to satisfy all conditions precedent to the delivery of the Bonds. (n) If the Registration Statement at the time of the Initial Closingeffectiveness of this Agreement does not cover all of the Bonds, to file a Rule 462(b) Registration Statement with the Commission registering the Bonds not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement and seeking and using its best efforts to maintain pay to the Commission the filing fee for such listing for a period Rule 462(b) Registration Statement at the time of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable filing thereof or to Grandview, which will have the responsibility give irrevocable instructions for the preparation payment of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 2 contracts

Samples: Underwriting Agreement (Midland Enterprises Inc /De/), Underwriting Agreement (Eastern Enterprises)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement has become effective, and if Rule 430A is used or to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file the Prospectus (properly completed if Rule 430A has been used), subject endeavor to the prior approval of Grandview, pursuant cause such post-effective amendment to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise the Underwriters promptly and, if requested by the Underwriters, will confirm such filing to Grandview promptly following advice in writing, when such filingpost-effective amendment has become effective. (b) The Company will notadvise the Underwriters promptly and, during if requested by the Underwriters, will confirm such period as advice in writing: of any request by the Prospectus would be required by law to be delivered in connection with sales Commission for amendment of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or a supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and within the period of time referred to in paragraph (e) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time within the time period referred to in paragraph (e) the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (c) The Company will furnish to the Company has omitted any information from Underwriters, without charge and upon the Underwriters' request, (i) such number of conformed copies of the Registration StatementStatement as originally filed and of each amendment thereto, pursuant to Rule 430Abut without exhibits, it 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 as the Underwriters promptly may reasonably request, (ii) such number of all such filingscopies of the Incorporated Documents, without exhibits, as the Underwriters may reasonably request, and (iii) one copy of the exhibits to the Incorporated Documents. (d) If, at The Company will not file any time when a Prospectus relating amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (e) below, file any document which upon filing, becomes an Incorporated Document, of which the Underwriters shall not previously have been advised or to which, after the Underwriters shall have received a copy of the document proposed to be filed, the Underwriters shall reasonably object. (e) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as the Underwriters may reasonably request. Subject to the provisions of subsection (f) below, the Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws or real estate syndication laws of the jurisdictions in the United States in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. If during such period of time any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel necessary to the Company supplement or Underwriter Counsel, at any time to amend or supplement the Prospectus (or to file under the Registration Statement Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the CommissionCommission an appropriate supplement or amendment thereto (or to such document), at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will expeditiously furnish to the Underwriters and Underwriter Counseldealers a reasonable number of copies thereof. In the event that the Company and the Underwriters agree that the Prospectus should be amended or supplemented, without charge: (i) one conformed copy of the Registration Statement as originally filed with Company, if requested by the Commission and each amendment theretoUnderwriters, including financial statements and schedules, and all exhibits thereto, (ii) so long as will promptly issue a prospectus relating to press release announcing or disclosing the Shares is required matters to be delivered under covered by the Securities Act, as many copies of the Prospectus or any proposed amendment or supplement thereto as the Underwriters may reasonably requestsupplement. (f) The Company will comply cooperate with all the undertakings contained in the Registration Statement. (g) The Company represents Underwriters and agrees that, except with counsel for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws or real estate syndication laws of such jurisdictions as Grandview the Underwriters may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (g) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, which shall satisfy the provisions of Section 11(a) of the Act. (h) The Company will furnish to its shareholders, as soon as practicable after the end of each respective fiscal year, an annual report (including financial statements audited by independent public accountants). (i) If this Agreement shall terminate or shall be terminated after execution by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement to be complied with or fulfilled by the Company, the Company agrees to reimburse the Underwriters for all reasonable out-of-pocket expenses (including fees and expenses of counsel) incurred by the Underwriters in connection with this Agreement. (j) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares substantially in accordance with the manner description set forth in the Prospectus under the caption "Use of Proceeds.” Without " in the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersProspectus. (jk) The Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise the Underwriters or the Underwriters' counsel of the time and manner of such filing. (l) Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares. (m) The Company will use its best efforts to ensure that list the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the ClosingNYSE. (n) The Subject to the determination by the Board of Directors of the Company shall register with to the Corporation Records Service published by Standard & Poor’s Corporation contrary, the Company will use its best efforts to meet the requirements to qualify as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the "Code") and covenant to maintain such registration cause the Partnership to be treated as a partnership for a period of three (3) years from the Closingfederal income tax purposes. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, Except as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingprovided in this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or grant Grandview any options or warrants to purchase Common Stock for a period of 30 days after the right date of first refusal to co-manage any public underwriting or private placement the Prospectus Supplement, without the prior written consent of debt or equity securities (excluding Citigroup Global Markets Inc., except (i) sales for the issuance of Common Stock pursuant to employees under any compensation or stock option plan approved by the shareholders redemption of units of limited partnership interest in the Partnership ("Partnership Units") in accordance with the Third Amended and Restated Agreement of Limited Partnership of the CompanyPartnership, as amended and (ii) shares for options or Common Stock issued pursuant to stock option or stock purchase plans as described in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of Prospectus or the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeIncorporated Documents.

Appears in 1 contract

Samples: Underwriting Agreement (Equity Inns Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you three (3) signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company will comply with all and its subsidiaries shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents and agrees thatTo make generally available to its shareholders as soon as practicable an earnings statement covering the twelve-month period ending April 30, except for 1999 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request in writing. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Shareholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and disbursements of counsel (but not counsel's fees) for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that Inc., (vi) all fees and expenses in no event shall connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, (ix) a nonaccountable expense allowance in the amount of $750,000 payable to DLJ upon the Closing Date, the payment of which will not require DLJ to provide any accounting therefor and (x) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it and the Selling Shareholders hereunder for which provision is not now so qualified or to take any action which would subject it to general service otherwise made in this Section. The provisions of process in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which this Section shall not be unreasonably withheld, conditioned supersede or delayed, no proceeds otherwise affect any agreement that the Company and the Selling Shareholders may otherwise have for allocation of the Offering will be used to pay outstanding loans from officers, directors or stockholderssuch expenses among themselves. (j) The Company will To use its best efforts to ensure that list for quotation the Shares are listed on the NASDAQ Capital Nasdaq National Market at the time of the Initial Closing, and seeking and using to use its best efforts to maintain such the listing of the Shares on the Nasdaq National Market for a period of at least three (3) years after the Closingdate of this Agreement. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Ise Labs Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followseach of you that: (a) It will, if the Registration Statement has not heretofore become effective under the Act, and if otherwise necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A of the Act, a post-effective amendment to the Registration Statement, in each case as soon as practicable after the execution and delivery of this Agreement, and it will use its best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. If the Registration Statement has become effective and the Company, omitting from the Prospectus certain information in reliance upon Rule 430A of the Act, elects not to file a post-effective amendment pursuant to Rule 430A of the Act, it will file the form of Prospectus required by Rule 424(b) of the Act within the time period specified by Rule 430A and Rule 424(b) of the Act. The Company will otherwise comply in a timely manner with all applicable provisions of Rule 424 and Rule 430A of the Act. (b) It will advise DLJ promptly and, if requested by DLJ, confirm such advice in writing, (i) when the Registration Statement has become effective, if and if Rule 430A is used or the filing of when the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, sent for filing pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales 424 of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof Act and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; , (ii) of the receipt of any request comments from the Commission or any state securities commission or any other regulatory authority that relate to the Registration Statement or requests by the Commission or any state securities commission or any other regulatory authority for any amendments amendment or supplement to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, or of the Prospectussuspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that such purpose by the Commission or the threat thereof; any state securities commission or any other regulatory authority and (iv) of becoming aware of the occurrence happening of any event that during the period referred to in the judgment of the Company paragraph (d), below, which makes any statement of a material fact made in the Registration Statement untrue or the Prospectus untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement in order to make the statements therein not misleading or that makes any statement of a material fact made in the Prospectus untrue or which requires the making of any addition to or change in the Prospectus in order to make the statements therein, in light of the circumstances in under which they are were made, not misleading; and (v) of receipt by . The Company shall use its best efforts to prevent the Company issuance of any notification with respect to any suspension stop order or order suspending the qualification or exemption of the qualification of the Shares for offer and sale in Securities under any jurisdiction. If Federal or state securities or Blue Sky laws, and, if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with Statement, or any state securities commission or any other regulatory authority shall issue an order suspending the offering contemplated herebyqualification or exemption of the Securities under any state securities or Blue Sky laws, the Company will make shall use every reasonable effort to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (c) Promptly after the Registration StatementStatement becomes effective, pursuant and from time to Rule 430Atime thereafter for such period as in your reasonable judgment a prospectus is required to be delivered in connection with sales of the Securities by an Underwriter or a dealer, it will use its best efforts furnish to comply with each Underwriter and each dealer, without charge, as many copies of the provisions Prospectus, including all documents incorporated by reference therein, (and of and make all requisite filings with any amendment or supplement to the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all such filingsProspectus) as you may reasonably request. (d) If, at any time when a Prospectus relating to If during the Shares is required to be delivered under the Securities Act, the Company becomes aware period specified in paragraph (c) of the occurrence of this Section 4 any event shall occur as a result of which it becomes necessary to amend or supplement the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madeexisting as of the date the Prospectus is delivered to an offeree or a purchaser, not misleading, or if it is necessary to amend or supplement the Registration StatementProspectus to comply with any law, it will promptly prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinwill not, in the light of the circumstances under which they were madeexisting as of the date the Prospectus is so delivered, not be misleading, and will comply with applicable law, and will promptly notify you of such event and amendment or if supplement and furnish to you without charge such number of copies thereof as you may reasonably request. (e) It will make generally available to its security holders, as soon as practicable and for any the time period specified by Rule 158 under the Act, a consolidated earnings statement which shall satisfy the provision of Section 11(a) and Rule 158 of the Act. (f) Whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, it will pay and be responsible for all costs, charges, expenses, fees and taxes incurred in connection with or incident to (i) the preparation, printing, filing, distribution and delivery under the Act of the Registration Statement (including financial statements and exhibits), each preliminary prospectus, the Prospectus and all amendments and supplements thereto, (ii) the registration with the Commission and the issuance and delivery of the Securities, (iii) the printing and delivery of this Agreement, the Indenture, the Escrow Agreement and all other reason it is necessaryagreements, memoranda, reports, correspondence and other documents printed, distributed and delivered in connection with the offering of the Securities, (iv) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the jurisdictions referred to in paragraph (i) below (including, in each case, the reasonable judgment fees and disbursements of counsel relating to such registration or qualification and memoranda relating thereto and any filing fees in connection therewith), (v) furnishing such copies of the Registration Statement (including exhibits), Prospectus and preliminary prospectuses, and all amendments and supplements to any of them, including any document incorporated by reference therein, as may be reasonably requested by the Underwriters or by dealers to whom Securities may be sold, (vi) any filing with the National Association of Securities Dealers, Inc. (the "NASD") in connection with the offering of the Securities (including, without limitation, any filing fees in connection therewith but excluding the fees of Xxxxx Xxxx & Xxxxxxxx, legal counsel to the Underwriters ("Underwriters' Counsel")), (vii) the listing of the Securities on the New York Stock Exchange (the "NYSE"), (viii) the rating of the Securities by investment rating agencies, (ix) any "qualified independent underwriter" as required by Schedule E of the Bylaws of the NASD (including fees and disbursements of counsel for such qualified independent underwriter) and (x) the performance by the Company of its other obligations under this Agreement, including (without limitation) the fees of the Trustee and Escrow Agent, the cost of their respective personnel and other internal costs, the cost of printing and engraving the certificates representing the Securities, and all expenses incident to the sale and delivery of the Securities to the Underwriters. (g) It will furnish to DLJ, without charge, one signed copy (plus one additional signed copy to Underwriters' Counsel) of the Registration Statement as first filed with the Commission and of each amendment or supplement to it, including each post-effective amendment, all exhibits filed therewith and all documents incorporated by reference therein, and such number of conformed copies of the Registration Statement as so filed and of each amendment to it, including each post-effective amendment, but without exhibits, as you may reasonably request. (h) It will not file any amendment or supplement to the Registration Statement, whether before or after the time when it becomes effective, or make any amendment or supplement to the Prospectus (other than any document required to be filed under the Securities Exchange Act of 1934, as amended, including the rules and regulations thereunder (collectively, the "Exchange Act") that upon filing is deemed to be incorporated by reference therein) of which you shall not previously have been advised and provided a copy prior to the filing thereof or to which you shall reasonably object unless in the opinion of legal counsel to the Company or Underwriter Counsel, at any time to amend such amendment or supplement is required by law to be filed; it will furnish to you at or prior to the Prospectus or filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Registration Statement to comply with the Securities Act or the Rules Prospectus; and Regulations, the Company it will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expensepromptly upon your reasonable request, an any amendment or supplement to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement which may be necessary or omission or effects such compliance advisable in connection with the distribution of the Securities by you, and will deliver use its best efforts to cause the Underwriters, without charge, such number of copies thereof same to become effective as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriterspromptly as possible. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale any public offering of the Shares to the InvestorsSecurities, the Company it will cooperate with Grandview you and Underwriter Underwriters' Counsel in connection with the registration or qualification of the Shares Securities for offer and sale by the Underwriters under the state securities or Blue Sky laws of such United States jurisdictions as Grandview you may reasonably request, if any; provided. The Company will continue such qualification in effect so long as required by law for distribution of the Securities and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification (PROVIDED, that in no event shall the Company shall not be obligated to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or nor to take any action which that would subject it to general consent to service of process in any jurisdiction where in which it is not now so subject). (ij) The It timely will complete all required filings and otherwise comply fully in a timely manner with all provisions of the Exchange Act to effect the registration of the securities pursuant thereto, and, during the period specified in paragraph (c) of this Section 4, will file timely all reports required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and it will apply use its best efforts to cause the net Securities to be listed on the NYSE. (k) So long as any of the Securities are outstanding, it will mail to each of the Underwriters, without charge, a copy of each report or other publicly available information furnished to holders of the Securities, or filed with the Commission, whether or not required by law or pursuant to the Indenture, and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request, at the same time as such reports or other information are furnished to such holders. (l) To the extent permitted by law, it will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities. (m) It will use the proceeds from the offering and sale of the Offered Securities in the manner set forth described in the Prospectus under the caption "Use of Proceeds.” Without " (n) During the written consent period beginning on the date of Grandviewthis Agreement and continuing to and including the Closing Date, which shall it will not be unreasonably withheldoffer, conditioned sell, contract to sell or delayed, no proceeds otherwise dispose of any debt securities of the Offering will be used Company or warrants, rights, or options to pay outstanding loans from officerspurchase debt securities of the Company (other than (i) the Securities and (ii) commercial paper issued in the ordinary course of business), directors or stockholderswithout your prior written consent. (jo) The Company It will use its best efforts to ensure that do and perform all things required to be done and performed under this Agreement by it prior to or after the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, Closing Date and seeking and using will use its reasonable best efforts to maintain such listing for a period of at least three (3) years after satisfy all conditions precedent on its part to be satisfied prior to the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation delivery of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingSecurities. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Tenet Healthcare Corp)

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter any Underwriter or any dealer (including in connection with the offering contemplated by this Agreementcircumstances where such requirement may be satisfied pursuant to Rule 172), file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Representatives within a reasonable period of time prior to the filing thereof and Grandview the Representatives shall not have reasonably objected thereto in good faith. (cb) The Company will notify the Underwriters Representatives promptly, and will, if requested, will confirm such notification advice in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effective; , (ii2) of the receipt of any comments from or any request by the Commission for any amendments or supplements to the Registration Statement Statement, any Preliminary Prospectus or any amendment or supplements to the Prospectus or for additional information; , (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, any notice objecting to its use or the initiation of any proceedings for that purpose or the threat thereof; , (iv4) of becoming aware of the occurrence happening of any event during the period mentioned in the second sentence of Section 5(e) that in the judgment of the Company makes any statement made in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; , and (v5) of receipt by the Company or any representative or attorney of the Company of any notification with respect other communication from the Commission relating to the Company, the Registration Statement, any suspension of Preliminary Prospectus or the qualification of the Shares for offer and sale in any jurisdictionProspectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If . (c) The Company will furnish to the Company has omitted any information from Representatives, without charge, four copies of the signed copies of the Registration StatementStatement and of any post-effective amendment thereto, pursuant including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to Rule 430Abe incorporated by reference into the Prospectus) and will furnish to the Representatives, it will use its best efforts without charge, for transmittal to comply with each of the provisions other Underwriters, copies of the Registration Statement and make all requisite filings with the Commission pursuant to said Rule 430A any post-effective amendment thereto, including financial statements and to notify the Underwriters promptly of all such filingsschedules but without exhibits. (d) IfThe Company will comply with all the provisions of any undertakings contained in the Registration Statement. (e) The Company will deliver to each of the Underwriters, at without charge, as many copies of the Prospectus, each Issuer Free Writing Prospectus or any time when a Prospectus relating amendment or supplement thereto, as the Representatives may reasonably request. The Company consents to the use of the Prospectus, each Issuer Free Writing 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Act). 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 Securities ActProspectus to comply with law, subject to the provisions of Section 5(a) hereof, the Company becomes aware will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Underwriters, without charge, such number of copies thereof as the Representatives may reasonably request. The Company shall not file any document under the Exchange Act before the termination of the occurrence offering of any the Shares by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus which is not approved by the Representatives after reasonable notice thereof. If there occurs an event or development as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, General Disclosure Package would include any an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madethen prevailing, not misleading, or the Registration Statement, as then Company will notify promptly the Representatives so that any use of the General Disclosure Package may cease until it is amended or supplemented, would. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Shares, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable judgment amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may shall reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably requestobject. (f) The Company will comply cooperate with all the undertakings contained in the Registration Statement. (g) The Company represents Representatives and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating counsel to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel Underwriters in connection with the registration or qualification of the Shares and the Preferred Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Representatives may reasonably request, if any; 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. (ig) During the period of five years commencing on the date hereof, the Company will furnish to each of 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 each of 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 apply make generally available to holders of its securities as soon as may be practicable but in no event later than the net proceeds from the offering and sale last day of the Offered Securities fifteenth full calendar month following the calendar quarter in which the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of GrandviewEffective Date falls, a consolidated earnings statement (which shall need not be unreasonably withheldaudited but shall be in reasonable detail), conditioned or delayed, no proceeds of with respect to the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountantsPrimary Entities, for a period of at least three (3) years 12 months commencing after the ClosingEffective Date, and satisfying the provisions of Section 11(a) of the Act (including Rule 158 thereunder) and will file such earnings statement as an exhibit to the next periodic report required by Section 13 or 15(d) of the Exchange Act covering the period when the earnings statement is released. (li) The If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 9 hereof or by notice given by you terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company shall retain a transfer agent to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3Underwriters) years after the Closingreasonably incurred by you in connection herewith. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (oj) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the SharesShares in violation of the Act. (pk) The Company shall, upon will apply the reasonable request net proceeds from the offering and sale of the UnderwritersShares in the manner set forth in the General Disclosure Package and the Prospectus under “Use of Proceeds.” (l) The Company will use its best efforts to have the Shares listed, deliver written affirmation subject to notice of any certificate delivered to issuance, on the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateNew York Stock Exchange. (qm) The Company shall supply Grandview represents and its counselagrees that, at unless it obtains the Company’s costsprior written consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company and the Representatives, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Act. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (y) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (z) it has complied and will comply, as the case may be, with a reasonable number the requirements of bound volumes Rules 164 and 433 of the public offering materials within Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a reasonable time after the Closingfree writing prospectus that (a) is not an Issuer Free Writing Prospectus as defined in Rule 433, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. and (rb) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding contains only (i) sales to employees under any compensation or stock option plan approved by information describing the shareholders preliminary terms of the Company, Shares or their offering or (ii) shares issued in payment information that describes the final terms of the consideration for an acquisition Shares or their offering and (iii) conventional banking arrangements and commercial debt financing) that is included in the Final Term Sheet of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept contemplated in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeSection 5(e).

Appears in 1 contract

Samples: Underwriting Agreement (Ps Business Parks Inc/Ca)

Agreements of the Company. The Company covenants and agrees with the Underwriters as ------------------------- follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter any Underwriter or dealer in connection with the offering contemplated by this Agreementany dealer, file any amendment or supplement to the Registration Statement (including any filing under Rule 462(b) under the Act) or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Representatives within a reasonable period of time prior to the filing thereof and Grandview the Representatives shall not have reasonably objected thereto in good faith. (cb) The Company will notify use its best efforts to cause the Underwriters promptly, Rule 462(b) Registration Statement and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes to become effective; , and will notify the Representatives promptly, and will confirm such advice in writing, (ii1) when any Rule 462(b) Registration Statement and any post-effective amendment to the Registration Statement become effective, (2) of the receipt of any comments from or any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv4) of becoming aware of the occurrence happening of any event during the period mentioned in the second sentence of Section 5(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; , and (v5) of receipt by the Company or any representative or attorney of the Company of any notification with respect other communication from the Commission relating to any suspension of the qualification of Company, the Shares for offer and sale in any jurisdictionRegistration Statement or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If . (c) The Company will furnish to the Company has omitted any information from Representatives, without charge, four copies of the signed copies of the Registration StatementStatement and of any post-effective amendment thereto, pursuant including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to Rule 430Abe incorporated by reference into the Prospectus) and will furnish to the Representatives, it will use its best efforts without charge, for transmittal to comply with each of the provisions other Underwriters, copies of the Registration Statement and make all requisite filings with the Commission pursuant to said Rule 430A any post-effective amendment thereto, including financial statements and to notify the Underwriters promptly of all such filingsschedules but without exhibits. (d) IfThe Company will comply with all the provisions of any undertakings contained in the Registration Statement. (e) The Company will deliver to each of the Underwriters, at without charge, as many copies of the Prospectus, including any time when a Prospectus relating amendment or supplement thereto, as the Representatives may reasonably request. The Company consents to the use of the Prospectus, including 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 under in connection therewith. If during such period of time any event shall occur which in the Securities Act, judgment of the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Underwriters should be set forth in the Prospectus in order to make the statements any statement therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were it was made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel necessary to the Company supplement or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with law, subject to the Securities Act or the Rules and Regulationsprovisions of Section 5(a) hereof, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly forthwith prepare and duly file with the CommissionCommission an appropriate supplement or amendment thereto, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters Representatives may reasonably request. The Company consents to shall not file any document under the use Exchange Act before the termination of the Prospectus or any amendment or supplement thereto offering of the Shares by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required if such document would be deemed to be delivered under the Securities Act, as many copies of incorporated by reference into the Prospectus or any amendment or supplement thereto as which is not approved by the Underwriters may reasonably requestRepresentatives after reasonable notice thereof. (f) The Company will comply cooperate with all the undertakings contained in the Registration Statement. (g) The Company represents Representatives and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating counsel to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel Underwriters in connection with the registration or qualification of the Shares and the Preferred Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Representatives may reasonably request, if any; 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. (ig) During the period of five years commencing on the date hereof, the Company will furnish to each of 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 each of 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 apply make generally available to holders of its securities as soon as may be practicable but in no event later than the net proceeds from the offering and sale last day of the Offered Securities fifteenth full calendar month following the calendar quarter in which the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of GrandviewEffective Date falls, a consolidated earnings statement (which shall need not be unreasonably withheldaudited but shall be in reasonable detail), conditioned or delayed, no proceeds of with respect to the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountantsPrimary Entities, for a period of at least three (3) years 12 months commencing after the ClosingEffective Date, and satisfying the provisions of Section 11(a) of the Act (including Rule 158 thereunder) and will file such earnings statement as an exhibit to the next periodic report required by Section 13 or 15(d) of the Exchange Act covering the period when the earnings statement is released. (li) The If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 9 hereof or by notice given by you terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company shall retain a transfer agent to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3Underwriters) years after the Closingreasonably incurred by you in connection herewith. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (oj) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the SharesShares in violation of the Act. (pk) The Company shall, upon will apply the reasonable request net proceeds from the offering and sale of the Underwriters, deliver written affirmation Shares in the manner set forth in the Prospectus under "Use of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateProceeds." (ql) The Company shall supply Grandview and will use its counselbest efforts to have the Shares listed, at subject to notice of issuance, on the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by GrandviewAmerican Stock Exchange. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Ps Business Parks Inc/Ca)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or of the initiation of any proceedings proceeding for that purpose or either of such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event during the period referred to in Section 5(d) below that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you five (5) signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be reasonably satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 a.m., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; PROVIDED, HOWEVER, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its stockholders as soon as practicable an earning statement covering the twelve-month period ending September 30, except for 2000 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange or national system for quotation on which any class of securities of the Company is listed or quoted, as the case may be, and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that Inc., (vi) all fees and expenses in no event shall connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it hereunder for which provision is not now so qualified or to take any action which would subject it to general service of process otherwise made in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersthis Section. (j) The Company will To use its best efforts to ensure that include for quotation the Shares are listed on the NASDAQ Capital Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement. (k) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares. (l) If the Registration Statement at the time of the Initial Closingeffectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 p.m., New York City time, on the date of this Agreement and seeking and using its best efforts to maintain pay to the Commission the filing fee for such listing Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for a period the payment of at least three (3such fee pursuant to Rule 111(b) years after under the ClosingAct. (km) The That in connection with the Directed Share Program, the Company shall retain a firm will ensure that the Directed Shares will be restricted to the extent required by the National Association of independent certificate public accountantsSecurities Dealers, acceptable to GrandviewInc. (the "NASD") or the NASD rules from sale, which will have the responsibility for the preparation of the financial statements and the financial exhibitstransfer, if anyassignment, to be included in the Registration Statement and continuing to retain such accountants, pledge or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, hypothecation for a period of three (3) years after months following the Closing. (m) date of the effectiveness of the Registration Statement. DLJ will notify the Company as to which Participants will need to be so restricted. The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain will direct the removal of such firm, or a comparable firm, for a transfer restrictions upon the expiration of such period of two (2) years after the Closingtime. (n) The Company shall register To pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Corporation Records Service published Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following in connection with the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the ClosingDirected Share Program. Furthermore, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of covenants with DLJ that the Company or any subsidiary or successor of will comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Company during Directed Shares are offered in connection with the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeDirected Share Program.

Appears in 1 contract

Samples: Underwriting Agreement (Exe Technologies Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you six (6) signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment of counsel to the Company or Underwriter Counselin the opinion of counsel for the Underwriters, include any untrue statement of a material fact it becomes necessary to amend or omit to state a material fact necessary supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementjudgment of the Company or in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such U.S. jurisdictions, or the securities laws of such other jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; PROVIDED, HOWEVER, that the Company will comply with all the undertakings contained shall not be required in the Registration Statementconnection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its shareholders as soon as practicable an earnings statement covering the twelve-month period ending September 30, except for 2001 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Ordinary Shares or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and Radview Software, Inc. (the "U.S. Subsidiary") as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters and the issuance of the Shares, including any stamp duty, transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto, if any; providedsuch fees of counsel for the Underwriters not to exceed $5,000 in the aggregate), that (v) the filing fees and disbursements of counsel for the Underwriters in no event shall connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc. ("NASD"), (vi) all costs and expenses of the Underwriters, incurred in connection with the Directed Shares Program, (vii) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A (or other applicable form) relating to the Ordinary Shares and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (viii) the cost of printing certificates representing the Shares, (ix) the costs and charges of any transfer agent, registrar and/or depositary, and (x) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it hereunder for which provision is not now so qualified or to take otherwise made in this Section. It is understood, however, that, except as provided in this Section and Section 7 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes (other than any action which would subject it to general service imposed by the State of process in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale Israel including, without limitation, stamp tax payable upon issuance of the Offered Securities in the manner set forth in the Prospectus under the caption “Use Shares) on resale of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds any of the Offering will be used to pay outstanding loans from officersShares by them, directors or stockholdersand any advertising expenses connected with any offers they may make. (j) The Company will To use its reasonable best efforts to ensure that list for quotation the Shares are listed on the NASDAQ Capital Nasdaq National Market at and to maintain the time listing of the Initial Closing, and seeking and using its best efforts to maintain such listing Shares on the Nasdaq National Market for a period of at least three (3) years after the Closingdate of this Agreement. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its reasonable best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (qm) The Company shall supply Grandview and its counsel, at That in connection with the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the ClosingDirected Share Program, the Company will grant Grandview ensure that the right of first refusal Directed Shares will be restricted to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved the extent required by the shareholders NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the Company, (ii) shares issued in payment effectiveness of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of Registration Statement. DLJ will notify the Company as to which Participants will need to be so restricted. The Company will direct the removal or any subsidiary such transfer restrictions upon the expiration of such period of time. (n) To pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program (other than fees of U.S. counsel for the Underwriters) and stamp duties, similar taxes or successor of duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program. Furthermore, the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from covenants with DLJ that the Company containing such proposalwill comply with all applicable securities and other applicable laws, then Grandview will have not claim or right rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with respect to any such sale contained in any such noticethe Directed Share Program.

Appears in 1 contract

Samples: Underwriting Agreement (Radview Software LTD)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, either prior to the Applicable Time or thereafter during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter Underwriter or dealer in connection with the offering contemplated by this Agreementa dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Representative within a reasonable period of time prior to the filing thereof and Grandview the Representative shall not have reasonably objected thereto in good faith. (cb) The Company will will, to the extent applicable to the offer, sale or distribution of Shares, notify the Underwriters Representative promptly, and will, if requested, will confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement has been filed or becomes effective; effective or any amendment or supplement to the Prospectus has been filed, (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration StatementStatement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the ProspectusProspectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of becoming aware of the occurrence happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the 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 notification with respect other communication from the Commission relating to the Company, the Registration Statement, any suspension of preliminary prospectus, the qualification of Base Prospectus, the Shares for offer and sale in any jurisdictionProspectus Supplement or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with or preventing or suspending the offering contemplated herebyuse of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, Statement pursuant to Rule 430A430B of the Rules and Regulations, it 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 430B and to notify the Underwriters Representative 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) To the extent applicable to the offer, sale or distribution of Shares, the Company will furnish to the Representative, without charge, an electronic 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 Representative, 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) IfPrior to the completion of the distribution of the Shares, 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 an 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 each of the Underwriters, 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 Representative may reasonably request. The Company consents 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 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 that 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 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 Representative 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 Representative after reasonable notice thereof. If at any time when a following issuance of an Issuer Free Writing Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the Prospectus, as then amended or supplemented, would, information contained in the reasonable judgment of counsel to Registration Statement, the Company Pricing Prospectus or Underwriter Counsel, the Prospectus or included or would include any an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeprevailing at that subsequent time, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview Nxxxxxx & Company, LLC and, subject to Section 4(b) hereofif requested by Nxxxxxx & Company, LLC, will promptly prepare and file with the Commissionamend or supplement, at the Company’s its own expense, an amendment such Issuer Free Writing Prospectus to the Registration Statement eliminate or an amendment or supplement to the Prospectus that corrects correct such conflict, untrue statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably requestomission. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable Prior to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale public offering of the Shares to the InvestorsShares, the Company will cooperate with Grandview the Representative and Underwriter Counsel counsel to the Underwriters in connection with the registration or qualification of the Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as Grandview the Representative may reasonably request, if any; 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 that would subject it to general service of process in any jurisdiction where it is not now so subjectsubject or assume any ongoing reporting obligations to any governmental or other authorities in any jurisdiction. (g) The Company will, so long as required under the Rules and Regulations, furnish to its stockholders after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, 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, in each case within the time periods required therefor under the Exchange Act and the Rules and Regulations (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 earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the 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. (i) The Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will apply pay or cause to be paid all costs and expenses incident to the net proceeds from performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses incurred by the Company of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, if applicable, (iii) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered Securities Shares by the Underwriters or by dealers to whom Shares may be sold, (iv) the listing of the Shares on the NGSM, (v) any filings required to be made in connection with clearance of the manner set forth in offering of the Prospectus Shares with FINRA, (vi) the registration or qualification of the Shares for offer and sale under the caption “Use state or foreign securities or Blue Sky laws of Proceeds.” Without such jurisdictions designated pursuant to Section 4(f) and the written consent preparation, printing and distribution of Grandviewany Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda, which shall (vii) documented fees, disbursements and other charges of counsel to the Company (but not be unreasonably withheld, conditioned or delayed, no proceeds those of counsel for the Underwriters) and of the Offering will be used Accountant, (viii) the transfer agent for the Shares, and (ix) “road show” presentations to pay outstanding loans from prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or stockholdershosting meetings, but not including travel expenses for employees of any of the Underwriters. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any time, directly or indirectly, take any action intended, designed or which that might reasonably be expected, expected to cause or result in, or which that will constitute, stabilization of the price of the Shares shares of Common Stock to facilitate the sale or resale of any of the Shares. (pk) The Company shall, upon will apply the reasonable request net proceeds from the offering and sale of the Underwriters, deliver written affirmation Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateProceeds. (ql) The Company shall supply Grandview During the period beginning from the date hereof and its counsel, at continuing to and including the Company’s costs, with a reasonable number of bound volumes date that is 90 days after the date of the public offering materials within a reasonable time after Prospectus, without the Closingprior written consent of Nxxxxxx & Company, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the ClosingLLC, the Company will not (1) offer, sell, contract to sell, pledge, grant Grandview the right options, warrants or rights to purchase, or otherwise dispose of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary other securities convertible into or successor exchangeable for its Common Stock or other equity security, (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, other than (A) the Shares to be sold hereunder, (B) any shares of common stock of the Company during issued upon the one year period exercise of options, vesting of restricted stock or settlement of restricted stock units granted under the Company’s stock incentive plans described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (C) any options and other awards granted under any such stock incentive plans, (D) the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to any such stock incentive plan and (E) shares of common stock or other securities of the Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or equity of another entity (whether by merger, consolidation, acquisition of equity interests or otherwise), provided that (x) the aggregate number of shares issued pursuant to this clause (E) shall not exceed ten percent (10%) of the total number of outstanding shares of Stock immediately following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% issuance and sale of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering Firm Shares pursuant hereto and shall act as (y) the lead manager recipient of any such offering. If Grandview fails shares of common stock or securities issued pursuant to accept this clause (E) during the 90-day restricted period described above shall enter into an agreement substantially in writing any such proposal for such public or private sale within 20 the form set forth in Schedule IV hereto. (m) During the period of 90 days after receipt the date of a written notice from the Prospectus, the Company containing such proposal, then Grandview will have not claim file with the Commission or right with respect cause to become effective any registration statement relating to any securities of the Company without the prior written consent of the Representative other than the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to the Company’s stock incentive plans described in the Registration Statement, the Pricing Disclosure Package and the Prospectus. (n) The Company will cause each of its executive officers and directors to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of Nxxxxxx & Company, LLC, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such sale contained shares in any such noticesubstantially the form set forth in Schedule IV hereto.

Appears in 1 contract

Samples: Underwriting Agreement (Ultra Clean Holdings, Inc.)

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Final Prospectus is otherwise required under Rule 424(b), the Company will file the Final Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandviewthe Underwriters, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview the Underwriters promptly following such filing. (b) The Company will not, during such period as the Final Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this AgreementAgreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to Grandview the Underwriters within a reasonable period of time prior to the filing thereof and Grandview the Underwriters shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, promptly and will, if requested, confirm such notification in writing: (i1) when any post-effective amendment to the Registration Statement becomes effective; (ii2) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; (iii3) of upon the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Final Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; (iv4) of upon becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Final Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement in order to make the statements therein not misleading or in the Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v5) of upon receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and or sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyhereby or in connection with sales of Common Stock pursuant to market making activities by any of the Underwriters, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, Statement required pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a the Final Prospectus relating to the Shares is required to be delivered under the Securities ActAct (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company becomes aware of the occurrence of any event as a result of which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Underwriters, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Underwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Underwriters, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, the Underwriters and will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Underwriters, and the Underwriters agree to provide to each Investor, prior to the Closing, a copy of the Final Prospectus and any amendments or supplements thereto. (e) The Company will furnish to the Underwriters and Underwriter Counseltheir counsel, without charge: charge (ia) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (iib) so long as a prospectus relating to the Shares is required to be delivered under the Securities ActAct (whether physically or through compliance with Rule 172 under the Act or any similar rule), as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. (g) The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the Act and (ii) completion of the 180-day restricted period referred to in Section 4(o). (h) The Company will comply with all the undertakings contained in the Registration Statement. (gi) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Issuer Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under without the Securities Act, and has complied and will comply with prior written consent of the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. Representative. (j) The Company will retain in accordance with the Rules and Regulations all Permitted Issuer Free Writing Prospectuses not required to be filed pursuant to and timely file such Issuer Free Writing Prospectuses and include the appropriate legends thereon, in each case as required by the Rules and Regulations. The Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 to avoid any requirement to file with the Commission any electronic road show. (hk) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Underwriters and Underwriter Counsel their counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriters may reasonably request, if any; provided, 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. (il) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares in the manner set forth in the Final Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (jm) The Company will use its reasonable best efforts to ensure that the Shares are listed for trading on the NASDAQ Capital Market Nasdaq at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company its affiliates will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (po) The Company shallwill not, upon directly or indirectly, without the reasonable request prior written consent of the Underwriters, deliver written affirmation offer to sell, sell, contract to sell, grant any option or warrant to purchase, make any short sale, or otherwise dispose of (or announce any offer, sale, grant of any certificate delivered option or warrant to the Underwriters pursuant to Section 7 prior to purchase or other disposition), any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number shares of bound volumes capital stock of the public offering materials within a reasonable time after the ClosingCompany or securities convertible into, as well as a reasonable number or exchangeable or exercisable for, shares of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or capital stock option plan approved by the shareholders of the Company, (the “Lock-Up Securities”) for a period of 180 days after the date of this Agreement (the “Lock-Up Period”), except with respect to (i) the Shares to be sold hereunder, (ii) the issuance of shares issued in payment of Common Stock upon the exercise of stock options and warrants outstanding as of the consideration for an acquisition date hereof and the issuance of Common Stock or stock options under any employee benefit or stock incentive plan of the Company existing on the date hereof, and described in the Final Prospectus, (iii) conventional banking arrangements and commercial debt financingthe issuance of shares of Common Stock or stock options under any non-employee director stock plan or dividend reinvestment plan described in the Final Prospectus, (iv) the filing by the Company of any registration statement on Form S-8 or a successor form thereto, (v) the issuance of shares of Common Stock in connection with the Company’s subscription agreement with Stifel Venture Corp. or (v) the issuance of any shares of Common Stock by the Company in connection with a licensing agreement, joint venture, acquisition or business combination or other collaboration or strategic transaction (including the filing of a registration statement on Form S-4 or other appropriate form with respect thereto), provided, however that recipients of such shares of Common Stock agree to be bound by the terms of the lock-up letter described in Section 7(x) hereof. If the Representative agrees to waive or release any Lock-Up Securities from the Lock-Up Period, the Company will announce the impending release or waiver by press release through a major news service at least two business days before the effective date of such release or waiver. (p) Sxxxxx & Company, LLC will not sell any subsidiary or successor shares of Common Stock to an account holder with a discretionary account without specific approval of the Company during transaction from the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% account holder and retaining documentation of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept approval in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeits records.

Appears in 1 contract

Samples: Underwriting Agreement (Sidoti & Company, Inc.)

Agreements of the Company. The Company covenants and agrees with the several ------------------------- Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of Company will cause the Prospectus is otherwise Supplement to be filed as required under Rule 424(b), by Section 3(a) hereof (but only if you have not reasonably objected thereto by notice to the Company will file the Prospectus (properly completed if Rule 430A has after having been used), subject furnished a copy within a reasonable time prior to the prior approval of Grandview, pursuant to Rule 424(bfiling) within the prescribed time period and will provide a copy notify you promptly of such filing to Grandview promptly following such filing. (b) . The Company will not, not during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter Underwriter or dealer in connection with the offering contemplated by this Agreementdealer, file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Representatives within a reasonable period of time prior to the filing thereof and Grandview the Representatives shall not have reasonably objected thereto in good faith. (cb) The Company will notify the Underwriters Representatives promptly, and will, if requested, will confirm such notification advice in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effective; , (ii2) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv4) of becoming aware of the occurrence happening of any event during the period mentioned in the second sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; misleading and (v5) of receipt by the Company or any representative or attorney of the Company of any notification with respect other communication from the Commission relating to the Company, the Registration Statement, any suspension of Preliminary Prospectus or the qualification of the Shares for offer and sale in any jurisdictionProspectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If . (c) The Company will furnish to the Company has omitted any information from Representatives without charge two signed copies of the Registration StatementStatement and of any post-effective amendment thereto, pursuant including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to Rule 430Abe incorporated by reference into the Prospectus), it and will use its best efforts furnish to comply with the provisions Representatives upon request and without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and make all requisite filings with the Commission pursuant to said Rule 430A any post-effective amendment thereto, including financial statements and to notify the Underwriters promptly of all such filingsschedules but without exhibits. (d) If, at any time when a Prospectus relating to The Company will comply with all the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence provisions of any event as a result of which the Prospectus, as then amended or supplemented, would, undertakings contained in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the . (e) The Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to each of the Underwriters, without charge, such number as many copies of copies thereof the Prospectus containing the Prospectus Supplement or any amendment or supplement thereto as the Underwriters Representatives may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) 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 will furnish 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 forthwith prepare and Underwriter Counselduly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge: (i) one conformed copy , such number of the Registration Statement as originally filed with the Commission and each copies of such supplement or amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters Representatives 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 which the Representatives reasonably object. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable Prior to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale public offering of the Shares to the Investors, the Company will cooperate with Grandview the Representatives and Underwriter Counsel counsel to the Underwriters in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Representatives may reasonably requestrequest including, if anywithout limitation, other jurisdictions outside of the United States; 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. (ig) During the period of five years commencing on the date hereof, 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 apply make generally available to holders of its securities as soon as may be practicable but in no event later than the net proceeds from last day of the fifteenth full calendar month following the end of the Company's current fiscal quarter, an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424 under the Act, 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 will pay, or reimburse if paid by the Representatives, all fees, costs and expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to fees, costs and expenses of or relating to (1) the preparation, printing and filing of the Registration Statement and exhibits to it, each Preliminary Prospectus, the Prospectus 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 Underwriters, any Dealer Agreements and any Underwriters' Questionnaire, (4) 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 Offered Securities Shares by the Underwriters or by dealers to whom Shares may be sold, (5) the listing of the Shares on the New York Stock Exchange, (6) filings required to be made by or on behalf of the Company or the Underwriters, including without limitation filings to be made by the Company with the Commission, and the fees, disbursements and other charges of counsel for the Company in connection therewith, (7) the manner set forth in registration or qualification of the Prospectus Shares for offer and sale under the caption “Use securities or Blue Sky laws of Proceeds.” Without such jurisdic tions designated pursuant to Section 4(f), including the written consent fees, disbursements and other charges of Grandviewcounsel to the Underwriters in connection therewith, which shall not be unreasonably withheldand the preparation and printing of preliminary, conditioned supplemental and final Blue Sky memoranda, (8) counsel to the Company and any surveyors, engineers, appraisers, photographers, accountants and other professionals engaged by or delayed, no proceeds on behalf of the Offering will Company, (9) the transfer agent and registrar for the Shares, and (10) preparation of slides, overheads and other presentation material to be used in any ``road show'' or other presentation to pay outstanding loans from officerspotential investors and the hotel, directors travel and other expenses of the Company's employees in connection with any such ``road show'' or stockholderspresentation. (j) The If this Agreement shall be terminated by the Company pursuant to any of the provisions hereof (otherwise than pursuant to Section 8 hereof) or if for any reason the Company shall be unable to perform its obligations hereunder or thereunder, the Company will use its best efforts reimburse the several Underwriters for all out-of- pocket expenses (including the fees, disbursements and other charges of counsel to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3Underwriters) years after the Closingreasonably incurred by them in connection herewith. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (pl) The Company shall, upon will apply the reasonable request net proceeds from the offering and sale of the Underwriters, deliver written affirmation Shares to be sold by the Company in the manner set forth in the Prospectus under ``Use of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateProceeds.'' (qm) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well will continue to elect to qualify as a reasonable number of commemorative Lucite tombstones ``real estate investment trust'' under the Code, and will use its best efforts to continue to meet the requirements to qualify as requested by Grandviewa ``real estate investment trust. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.''

Appears in 1 contract

Samples: Underwriting Agreement (Avalon Properties Inc)

Agreements of the Company. The Company covenants and agrees with the several U.S. Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission of which the Company has knowledge for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that such purpose of which the Company has knowledge; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event event, including the filing of any information, documents or reports pursuant to the Exchange Act, that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectuses (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the time. (c) The Company has omitted any information from will furnish to you, without charge, four (4) signed copies of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the Registration Statement and will also furnish to notify you, without charge, such number of conformed copies of the Underwriters promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request. (d) If, at The Company will not (i) file any time when a Prospectus relating amendment to the Shares Registration Statement or make any amendment or supplement to the Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised or (ii) so long as, in the written opinion of counsel for the U.S. Underwriters (a copy of which shall be delivered to the Company), a prospectus is required to be delivered under in connection with sales by any U.S. Underwriter or dealer, file any information, documents or reports pursuant to the Securities Exchange Act, without delivering a copy of such information, documents or reports to you, as Representatives of the U.S. Underwriters, prior to or concurrently with such filing. (e) Prior to the execution and delivery of this Agreement, the Company becomes aware has delivered or will deliver to you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the occurrence U.S. Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by dealers, prior to the date of the U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the U.S. Underwriters (a copy of which shall be delivered to the Company) a U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer, the Company will expeditiously deliver to each U.S. Underwriter and each dealer, without charge, as many copies of the U.S. Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Company consents to the use of the U.S. Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer. If during such period of time any event as shall occur that in the judgment of the Company or in the written opinion of counsel for the U.S. Underwriters (a result copy of which shall be delivered to the Prospectus, Company) is required to be set forth in the U.S. Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make supplement or amend the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the U.S. Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the Commission, at the Company’s expense, Commission an appropriate supplement or amendment thereto and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance U.S. Underwriters and will deliver to the Underwriters, without charge, such dealers a reasonable number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementthereof. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the U.S. Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several U.S. Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act. (i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission or the Nasdaq National Market, and (ii) from time to time such other information concerning the Company as you may reasonably request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the U.S. Underwriters because of any failure or refusal on the part of the Company or any of the Selling Shareholders to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the U.S. Underwriters) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares to be sold by it hereunder substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectuses. (l) The If Rule 430A of the Act is employed, the Company shall retain a transfer agent for will timely file the Company’s Common Stock Prospectuses pursuant to Rule 424(b) under the Act and continue to retain will advise you of the time and manner of such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for For a period of two (2) years 180 days after the Closingdate hereof (the "Lock-up Period"), the Company will not, without the prior written consent of Xxxxx Xxxxxx Inc., offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock, except for (i) the Company's issuance of shares of Common Stock in connection with the reclassification of its Common Stock, (ii) the Company's issuance of shares of its Common Stock in connection with the approximate 5.51-for-1 stock split, (iii) the Company's issuance of shares of Common Stock upon exercise of the Warrants, (iv) the issuance of Common Stock upon the exercise of stock options granted, or the grant of stock options under the Company's Stock Option Plan (and the filing of a Form S-8 Registration Statement with respect to such shares of Common Stock) and (v) sales to the U.S. Underwriters pursuant to this Agreement and the Managers pursuant to the International Underwriting Agreement. (n) The Company shall register with the Corporation Records Service published has furnished or will furnish to you "lock-up" letters, in form and substance reasonably satisfactory to you, signed by Standard & Poor’s Corporation each of its current officers and covenant to maintain such registration for a period directors and each of three (3) years from the Closing___________. (o) The Except as stated in this Agreement and in the International Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Common Stock to facilitate the sale or resale of any of the Shares. (p) The Company shallwill use its reasonable best efforts to have the Common Stock listed, upon subject to notice of issuance, on the reasonable request Nasdaq National Market concurrently with the effectiveness of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Dateregistration statement. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: u.s. Underwriting Agreement (Telegroup Inc)

Agreements of the Company. The Company covenants and agrees with the several ------------------------- Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments an amendment of or a supplement to the Registration Statement Statement, the Prepricing Prospectus or any amendment or supplements to the Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in the first sentence of paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (c) The Company will furnish to you, without charge (i) two signed copies of the registration statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the registration statement, (ii) such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may reasonably request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may reasonably request, and (iv) two copies of the exhibits to the Incorporated Documents. (d) The Company has omitted will not (i) file any information from amendment to the Registration StatementStatement or make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object or (ii) so long as, in the opinion of counsel for the Underwriters, a Prospectus is required to be delivered in connection with sales by any Underwriter or dealer, file any information, documents or reports pursuant to Rule 430Athe Securities Exchange Act of 1934, it as amended (the "Exchange Act") without delivering a copy of such information, documents or reports to you, as Representatives of the Underwriters, prior to or concurrently with such filing. (e) The Company will use its best efforts to comply continue to meet the requirements to qualify as a real estate investment trust (a "REIT") under the Internal Revenue Code of 1986, as amended (the "Code") for the taxable year in which sales of Shares hereunder occur. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by the Underwriters or any dealer, the Company will expeditiously deliver to each Underwriter, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and make all requisite filings with the Commission pursuant securities or Blue Sky laws of the jurisdictions in the United States in which the Shares are offered by the several Underwriters and by all dealers to said Rule 430A whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to notify be delivered in connection with sales by any Underwriters or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, supplement or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus (or to file under the Registration Statement Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will promptly furnish to each Underwriter a reasonable number of copies thereof. In the event that the Company and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly prepare and file with issue a press release announcing or disclosing the Commission, at matters to be covered by the Company’s expense, an amendment to the Registration Statement or an proposed amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementsupplement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel your counsel in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by any dealers under the state securities or Blue Sky laws of such jurisdictions in the United States as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act. (i) During the period of two years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders generally or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may reasonably request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including fees and expenses of your counsel) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares and the Concurrent Shares substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersProspectus. (jl) The If Rule 430A of the Act is utilized, the Company will use its best efforts to ensure that prepare and timely file with the Shares are listed on Commission under Rule 424(b) under the NASDAQ Capital Market Act a Prospectus containing information previously omitted at the time of effectiveness of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the ClosingRegistration Statement. (km) The Except as provided in this Agreement, the Company shall retain a firm will not sell, contract to sell or otherwise dispose of independent certificate public accountants, acceptable to Grandview, which will have the responsibility any Common Shares or any securities convertible into or exercisable or exchangeable for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountantsCommon Shares, or comparable accountantsgrant any options or warrants to purchase Common Shares, for a period of at least three (3) years 180 days after the Closing. date of the Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc., except for (li) The options or Common Shares issued pursuant to stock option or stock purchase plans as described in the Registration Statement, the Prospectus or the Incorporated Documents, (ii) Common Shares issuable upon exercise of the option for 50,000 Common Shares held by a consultant to the Company shall retain and upon exercise of the warrant for 47,248 Common Shares originally issued to Barclays Investments, Inc., each described in the Prospectus, (iii) Common Shares issued upon redemption of units of partnership interest ("Common Units") outstanding as of the date hereof in Grove Operating, L.P., a transfer agent for Delaware limited partnership (the Company’s "Operating Partnership") and the entity through which the Company owns and operates the Properties and (iv) Common Stock and continue to retain such transfer agent, or a comparable firm, for a period Units issued in connection with the acquisition of three (3) years after additional properties by the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the ClosingOperating Partnership. (n) The Company shall register with has furnished to you "lock-up" letters in the Corporation Records Service published form attached hereto as Annex B, signed by Standard & Poor’s Corporation each of its current executive officers and covenant to maintain such registration for a period Trust Managers and each purchaser of three Common Shares (3assignee thereof) years from in the ClosingConcurrent Offering. (o) The Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Common Shares to facilitate the sale or resale of any of the Shares. (p) The Company shallhas made and will make such filings with, upon and has provided and will provide such notices to, the reasonable request of American Stock Exchange ("AMEX") so that the Underwriters, deliver written affirmation of any certificate delivered Shares will be listed on AMEX on or prior to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Grove Property Trust)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you six (6) conformed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the reasonable opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementreasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; PROVIDED, HOWEVER, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees that, except for make generally available to its shareholders as soon as practicable an earnings statement covering a period of at least twelve months beginning after the Approved FWP, it has not effective date of the Registration Statement that shall satisfy the provisions of Section 11(a) of the Act and will not, unless it obtains the prior consent of Grandviewrules and regulations thereunder (including Rule 158), which consent will need not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Actaudited, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Common Shares or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided, that (v) the filing fees and disbursements of counsel for the Underwriters in no event shall connection with 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 review and clearance of process in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all reasonable costs and expenses of the Underwriters, including fees and disbursements of counsel for the Underwriters, incident to the offer and sale of Directed Shares by the Offered Securities Underwriters or by the Company pursuant to the Directed Share Program, (vii) all fees and expenses in connection with the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds preparation and filing of the Offering registration statement on Form 8-A relating to the Common Shares and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (viii) the cost of printing certificates representing the Shares, (ix) the costs and charges of any transfer agent, registrar and/or depositary, and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood that except as provided in this Section, the Underwriters will be used to pay outstanding loans from officersall of their own costs and expenses, directors or stockholdersincluding fees and disbursements of their counsel and any stock transfer taxes on resale of any of the Shares held by them. (j) The Company will To use its best efforts to ensure that list for quotation the Shares are listed on the NASDAQ Capital Nasdaq National Market at and to maintain the time listing of the Initial Closing, and seeking and using its best efforts to maintain such listing Shares on the Nasdaq National Market for a period of at least three (3) years after the Closingdate of this Agreement. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Changepoint Corp)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as followsthat: (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when the Registration Statement has become effective, effective and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement it becomes effective; , and of the filing of any final prospectus or supplement or amendment to the Prospectus, (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or Prospectus or any amendment or supplements to the Preliminary Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iv) within the period of becoming aware time referred to in paragraph (f) below, of the occurrence happening of any event that in the judgment of the Company which makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or. supplemented) in order to make the statements therein, in light of therein not misleading or the circumstances in which they are made, not misleading; and (v) of receipt by necessity to amend or supplement the Company of Prospectus to comply with the Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted elects to rely on Rule 434 of the Act, the Company will prepare a Term Sheet that complies with the requirements of Rule 434 of the Act and will provide the Representatives with copies of the form of Rule 434 Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the Act in accordance with Rule 424(b) of the Act by the close of business in Chicago on the business day immediately succeeding the date hereof. If the Company elects not to rely on Rule 434, the Company will provide you with copies of the form of Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the Act, by the close of business in Chicago on the business day immediately succeeding the date hereof. (b) If, at the time that the Registration Statement becomes effective, any information from shall have been omitted therefrom in reliance upon Rule 430A under the Registration StatementAct, pursuant to then promptly following the execution of the Pricing Agreement, the Company will prepare and file with the Commission, in accordance with Rule 430A and Rule 424(b) under the Act, copies of an amended Prospectus, or, if required by Rule 430A, it will use a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted. (c) Neither the Company nor any of its best efforts subsidiaries will, prior to comply with the provisions earlier of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify Option Closing Date or termination or expiration of the Underwriters promptly related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of all such filingsbusiness, except as contemplated in the Prospectus. (d) IfThe Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Representatives shall not previously have been advised or to which the Representatives shall promptly after being so advised reasonably object in writing. (e) Prior to the effective date of the Registration Statement, at any the Company has delivered or will deliver to each of the Underwriters, without charge, copies of each form of Preliminary Prospectus in such quantities as they have reasonably requested or may hereafter reasonably request. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the effective date of the Registration Statement, of each Preliminary Prospectus so furnished by the Company. (f) On the effective date of the Registration Statement and thereafter from time when to time during such period as in the opinion of counsel for the Underwriters a Prospectus prospectus relating to the Shares is required by law to be delivered under in connection with offers or sales of the Securities ActShares by an Underwriter or a dealer, the Company becomes aware will deliver to each Underwriter and dealer, without charge, as many copies of the occurrence Registration Statement, the Prospectus and each Preliminary Prospectus and the Incorporated Documents (and of any amendment or supplement to such documents) as they may reasonably request. During such period, if any event as a result of occurs which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of the Company, or in the opinion of counsel for the Underwriters, should be set forth in the Prospectus in order to ensure that no part of the Company or Underwriter Counsel, include any Prospectus includes an untrue statement of a material fact or omit omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeat the time the Prospectus is delivered to a purchaser, not misleading, the Company will forthwith prepare, submit to the Representatives, file with the Commission and deliver, without charge to the several Underwriters and dealers (whose names and addresses will be furnished by the Representatives to the Company) to whom shares have been sold by the Underwriters or to other dealers any amendments or supplements to the Registration StatementProspectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably requeststandards set forth in this sentence. The Company consents to the use of such Prospectus (and of any amendments or supplements thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions described in the preliminary Blue Sky memorandum in which the Shares are lawfully offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus or is required by law to be delivered in connection therewith. In case any Underwriter is required to deliver a Prospectus (and any amendment or supplement thereto by thereto) more than nine months after the Underwriters. (e) The Company will furnish first date upon which the Shares are offered to the Underwriters public, the Company will, upon request, but at the expense of such Underwriter, promptly prepare and furnish such Underwriter Counsel, without charge: (iwith reasonable quantities of a Prospectus complying with Section 10(a)(3) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Representatives and Underwriter Counsel counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Representatives may designate, will continue such registrations or qualifications in effect so long as reasonably request, if anyrequired for the distribution of the Shares and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, provided that in no event shall the Company be obligated (i) to qualify to do business in any jurisdiction where it is not now so qualified qualified, (ii) to file any general consent to service of process, or to (iii) take any action which that would subject it to general service of process income taxation in any jurisdiction where it is not now so subjectqualified. (h) For a period of five years after the date of the Pricing Agreement: (i) the Company will furnish to the Representatives (A) as soon as available, a copy of each report of the Company of general interest mailed to any class of its security holders (B) copies of all annual reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K and any amendment thereto or such other similar forms as may be designated by the Commission and (C) from time to time, such other information concerning the Company as the Representatives may reasonably request; (ii) if at any time during such five year period, the Company shall cease filing with the Commission the annual reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (i) above, the Company will forward to its stockholders generally and the Representatives and upon request to each of the other Underwriters (A) as soon as practicable after the end of each fiscal year, copies of a balance sheet and statements of income and retained earnings of the Company as of the end of and for such fiscal year, certified by independent public accountants, and (B) as soon as practicable after the end of each quarterly fiscal period, except for the last quarterly fiscal period in each fiscal year, a summary statement (which need not be certified) of income and retained earnings of the Company for such period, which shall also be made publicly available; and (iii) the Company will furnish to the Representatives and to the NASD, and by issuance of a press release, on the date of declaration, notice of all dividends, including the amount and medium of payment, the record date (which shall be not less than ten days subsequent to the declaration date) and the payment date (which shall be not less than ten days subsequent to the record date). (i) The Company will make generally available to its security holders an earnings statement of the Company, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including Rule 158). (j) If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than by notice given by the Representatives' termination of this Agreement pursuant to Section 10 hereof), or if this Agreement shall be terminated by the several Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the several Underwriters for all out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) reasonably incurred by them in connection herewith but without any further obligation of the Company for lost profits or otherwise. If this Agreement is terminated pursuant to Section 10 hereof, the several Underwriters shall themselves bear any such out-of-pocket expenses incurred by them. (k) The Company agrees and will enter into an agreement not to sell, contract to sell or otherwise dispose of any Common Stock or rights to purchase Common Stock for a period of 180 days after the date of the Pricing Agreement without the prior written consent of the Representatives. The Company will also obtain similar agreements from each of its executive officers and directors. (l) The Company will apply the net proceeds from the offering and sale of the Offered Securities in shares to be sold by it under this Agreement and the manner Pricing Agreement for the purposes set forth in the Prospectus under the caption "Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders." (jm) The Company will use its best efforts efforts, subject to ensure that notice of issuance, to cause the Shares are listed to be approved for quotation on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the ClosingStock Market. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Comtech Telecommunications Corp /De/)

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used)Supplement, subject to the prior approval of Grandviewthe Selling Agent, pursuant to Rule 424(b) the Rules and Regulations under the Act, within the prescribed time period and will provide a copy of such filing to Grandview the Selling Agent promptly following such filing. (b) The Company will not, during such period as the Prospectus Supplement would be required by law to be delivered in connection with sales of the Shares Securities by an underwriter or dealer in connection with the offering Offering contemplated by this AgreementAgreement (whether physically or through compliance with the Rules and Regulations under the Act), file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior Supplement, in each case related to the filing thereof and Grandview shall Offering, without the consent of the Selling Agent, such consent not have reasonably objected thereto in good faith.to be unreasonably withheld or subject to undue delay.. (c) The Company will notify the Underwriters Selling Agent promptly, and will, if requested, confirm such notification in writing: (i1) when any post-effective amendment to the Registration Statement becomes effectiveis filed; (ii2) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus Supplement or for additional information; (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or the ProspectusProspectus Supplement, or the initiation of any proceedings for that purpose or the threat thereof; (iv4) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement Statement, the Base Prospectus or the Prospectus Supplement untrue in any material respect or that requires the making of any changes in the Registration Statement Statement, the Base Prospectus or the Prospectus Supplement in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v5) of receipt by the Company of any notification with respect to any suspension of the qualification registration or exemption from registration of the Shares Securities for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering Offering contemplated herebyhereby or in connection with sales of Common Stock pursuant to market making activities by the Selling Agent, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A the Act and the Rules and Regulations and to notify the Underwriters Selling Agent promptly of all such filings. (d) If, at any time when a the Prospectus Supplement relating to the Shares Securities is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the ProspectusProspectus Supplement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Selling Agent, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Selling Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Selling Agent, at any time to amend or supplement the Prospectus Supplement or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, the Selling Agent and will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or and/or an amendment or supplement to the Prospectus Supplement that corrects such statement or and/or omission or effects such compliance and will deliver to the UnderwritersSelling Agent, without charge, such number of copies thereof as the Underwriters Selling Agent may reasonably request. The Company consents to the use of the Prospectus Supplement or any amendment or supplement thereto by the UnderwritersSelling Agent, and the Selling Agent agrees to provide to each Investor, prior to the Closing and, as applicable, any Subsequent Closing, a copy of the Prospectus Supplement and any amendments or supplements thereto. (e) The Company will furnish has not distributed and, prior to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy later to occur of the Registration Statement as originally filed last Closing Date and completion of the distribution of the Securities, will not distribute any Offering material in connection with the Commission offering and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under sale of the Securities Actother than each Base Prospectus and Prospectus Supplement, or such other materials as many copies of to which the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably requestSelling Agent shall have consented in writing. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares Securities to the Investors, the Company will cooperate with Grandview the Selling Agent and Underwriter Counsel its counsel in connection with the registration or qualification qualification, or exemption therefrom, of the Shares Securities for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Selling Agent may reasonably request, if any; 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. (ig) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus Supplement under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (oh) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization in violation of Regulation M of the price of the Shares to facilitate the sale or resale of any of the SharesRules and Regulations. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Selling Agency Agreement (Monogram Technologies Inc.)

Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of Company will cause the Prospectus is otherwise required under Rule 424(b), Supplement to be filed as contemplated by Section 3(a) hereof (but only if the Representatives have not reasonably objected thereto by notice to the Company will file the Prospectus (properly completed if Rule 430A has after having been used), subject furnished a copy within a reasonable time prior to the prior approval of Grandview, pursuant to Rule 424(bfiling) within the prescribed time period and will provide a copy notify the Representatives promptly of such filing to Grandview promptly following such filing. (b) . The Company will not, not during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter any Underwriter or dealer in connection with (the offering contemplated by this Agreement"Prospectus Delivery Period"), file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Representatives within a reasonable period of time prior to the filing thereof and Grandview the Representatives shall not have reasonably objected thereto in good faith. (cb) The Company will use its best efforts to cause the Registration Statement to remain effective through the completion of the Underwriters' distribution of the Shares, and will notify the Underwriters Representatives promptly, and will, if requested, will confirm such notification advice in writing: , (i) of the preparation and filing (subject to Section 4(a)) of any post-effective amendment and when any such post-effective amendment to the Registration Statement becomes effective; , (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of becoming aware the suspension of the occurrence qualification or registration of the Shares for offering or sale in any jurisdiction, or of the initiation or threat of any proceeding for any such purpose; (v) of the happening of any event during the Prospectus Delivery Period that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; misleading and (vvi) of receipt by the Company or any representative or attorney of the Company of any notification with respect other communication from the Commission relating to the Company, the Registration Statement, any suspension of preliminary prospectus or the qualification of the Shares for offer and sale in any jurisdictionProspectus. If at any time the Commission or any jurisdiction shall issue threaten to issue, or shall issue, any order suspending the effectiveness of the Registration Statement or suspending the qualification or registration of the Shares for sale in connection with the offering contemplated herebyany jurisdiction, the Company will make every reasonable effort to prevent the issuance of such order and, if such an order should be issued, to obtain the withdrawal of any such order at the earliest possible moment. If the The Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters Representatives promptly of all such filings. (dc) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event occurs as a result of which which, in the judgment of the Company or in the opinion of counsel for the Underwriters, the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview the Representatives thereof and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s 's expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriterscompliance. (ed) The Company will furnish to the Underwriters and Underwriter CounselRepresentatives, without charge: (i) one conformed copy , two signed copies of the Registration Statement as originally filed with the Commission and each 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, copies of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits. (iie) so long as a prospectus relating The Company will comply with all the provisions of all undertakings contained in the Registration Statement. (f) During the Prospectus Delivery Period, the Company will promptly furnish to the Shares is required to be delivered under the Securities ActUnderwriters, without charge, as many copies of each preliminary prospectus, the Prospectus or (containing the Prospectus Supplement) and any amendment or supplement thereto as the Underwriters may from time to time reasonably request. (f) . The Company will consents to the use of the Prospectus, as amended or supplemented from time to time, by the Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and, thereafter, during the Prospectus Delivery Period. If during the Prospectus Delivery Period 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, in the reasonable opinion of counsel to the Underwriters, it is necessary to supplement or amend the Prospectus to comply with all law, the undertakings contained in Company will forthwith prepare and duly file with the Registration StatementCommission an appropriate supplement or amendment thereto. Except as required by the Exchange Act or the Exchange Act Rules and Regulations, the Company shall not file any document under the Exchange Act before the termination of the Prospectus Delivery Period if such document would be deemed to be incorporated by reference into the Prospectus to which the Representatives reasonably object. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable Prior to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale public offering of the Shares to by the InvestorsUnderwriters, the Company will cooperate with Grandview the Representatives and Underwriter Counsel its counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky blue sky laws of such jurisdictions as Grandview the Representatives may reasonably request, if any; 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. (h) During the period of five years commencing on the Closing 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 its security holders as soon as practicable, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Section 11(a) of the Act and Rule 158 of the Rules and Regulations) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement. (j) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares in the manner set forth in the Prospectus under the caption “"Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing." (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares shares of Preferred Stock to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Doral Financial Corp)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsTHE COMPANY AGREES WITH YOU: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you five signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementreasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company will comply with all the undertakings contained shall not be required in the Registration Statementconnection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending [date one year after the end of the Company's fiscal quarter in which the Closing will occur], except for that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that Inc., (vi) all fees and expenses in no event shall connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it hereunder for which provision is not now so qualified or to take any action which would subject it to general service of process otherwise made in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersthis Section. (j) The Company will To use its best efforts to ensure that list for quotation the Shares are listed on the NASDAQ Capital Nasdaq National Market at and to maintain the time listing of the Initial Closing, and seeking and using its best efforts to maintain such listing Shares on the Nasdaq National Market for a period of at least three (3) years after the Closingdate of this Agreement. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Andromedia Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followseach Underwriter: (a) The Registration Statement has become effectiveBeginning on the date hereof and continuing until the date that, and if Rule 430A in the opinion of counsel for the Underwriters, a prospectus is used or the filing (other than by reason of the Prospectus is otherwise required exemption in Rule 172 under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(bSecurities Act) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be no longer required by law the Securities Act to be delivered in connection with sales of the Shares by an underwriter the Underwriters or a dealer in connection with (the offering contemplated by this Agreement“Prospectus Delivery Period”), file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify advise the Underwriters Representatives promptly, and willand, if requestedrequested by the Representatives, confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Statutory Prospectus or Prospectus or any Issuer Free Writing Prospectus or any amendment to the Statutory Prospectus or Prospectus has been filed; (iii) of any request by the Commission for any amendments amendment to the Registration Statement or any amendment or supplements supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iiiiv) upon receipt of notice of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with or preventing or suspending the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal use of any such order at preliminary prospectus, any documents contained in the earliest possible moment. If Pricing Disclosure Package or the Company has omitted Prospectus or the initiation or threatening of any information from the Registration Statement, proceeding for that purpose or pursuant to Rule 430A, it will use its best efforts to comply with the provisions Section 8A of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware ; (v) of the occurrence of any event as a result of which the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting when the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, ; (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Statutory Prospectus, any documents contained in the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such order is issued, will use its best efforts to obtain as soon as possible the withdrawal thereof. (b) To furnish the Representatives five conformed copies of the Registration Statement as first filed with the Commission and of each amendment to it during the Prospectus Delivery Period, including all exhibits and documents incorporated therein by reference, and to furnish to the Representatives such number of conformed copies of the Registration Statement as so filed and of each such amendment to it, without exhibits but including documents incorporated therein by reference, as the Representatives may reasonably request. (c) To prepare the Statutory Prospectus and the Prospectus, the form and substance of which shall be reasonably satisfactory to the Representatives, and to file the Statutory Prospectus and the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b); during the Prospectus Delivery Period, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which the Representatives shall not previously have been advised or to which the Representatives shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon the Representatives’ reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the Underwriters and to use its best efforts to cause any such amendment to the Registration Statement to become promptly effective. The Company has complied and will comply with the requirements of Rule 433 applicable to any Issuer Free Writing Prospectus. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date. (d) Prior to 10:00 A.M., New York City time, on the second business day after the date of this Agreement and from time to time thereafter during the Prospectus Delivery Period, to furnish in New York City to the Underwriters and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus and any documents incorporated therein by reference) as the Underwriters or any dealer may reasonably request. (e) If during the Prospectus Delivery Period, in the opinion of counsel for the Underwriters, the Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include supplemented includes any untrue statement of a material fact or omit omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if for any other reason it is necessaryif, in the reasonable judgment opinion of counsel to for the Company or Underwriter CounselUnderwriters, at any time it is necessary to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationsapplicable law, the Company will promptly notify Grandview and, subject forthwith to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, Commission an amendment to the Registration Statement or an appropriate amendment or supplement to the Prospectus so that corrects such statement the statements in the Prospectus, as so amended or omission supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or effects such compliance so that the Prospectus will comply with applicable law, and will deliver to furnish to the Underwriters, without charge, such number of Underwriters and to any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Company will comply To cooperate with all the undertakings contained in the Registration Statement. (g) The Company represents Representatives and agrees that, except counsel for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel Underwriters in connection with the registration or qualification of the Shares for offer and sale by the Underwriters and by dealers under the state securities or Blue Sky laws of such United States jurisdictions as Grandview the Representatives may reasonably request, if anyto continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be obligated required in connection therewith to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or to take any action which that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction where in which it is not now so subject. (ig) The To make generally available to its security holders as soon as practicable an earnings statement covering the twelve-month period that shall satisfy the provisions of Section 11(a) of the Securities Act beginning with the first fiscal quarter of the Company will apply occurring after the net proceeds “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement. (h) For a period of one year from the offering and sale date of this Agreement, to furnish to the Representatives as soon as available copies of all reports or other communications the Company furnishes to its security holders or public reports or other public communications the Company furnishes to or files with the Commission or any national securities exchange on which any class of securities of the Offered Securities in Company is listed (except for so long as the manner set forth in Company is subject to the Prospectus under reporting requirements of either Section 13 or 15 of the caption “Use of Proceeds.” Without Exchange Act, and such communications are available on the written consent of GrandviewCommission’s Electronic Data Gathering, which Analysis and Retrieval system (or any successor thereto), the Company shall not be unreasonably withheld, conditioned or delayed, no proceeds of required to furnish to the Offering will be used to pay outstanding loans from officers, directors or stockholdersRepresentatives such communications) and such other publicly available information concerning the Company and its subsidiaries as the Representatives may reasonably request. (ji) The Company will use its best efforts to ensure that (A) Whether or not the Shares transactions contemplated by this Agreement are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, consummated or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingthis Agreement is terminated, the Company will grant Grandview pay or cause to be paid all costs and expenses incident to the right performance of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding its obligations hereunder, including without limitation, (i) sales the costs incident to employees the authorization, issuance, sale, preparation and delivery of the Shares and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the preliminary prospectus, any compensation or stock option plan approved by Issuer Free Writing Prospectus, the shareholders Pricing Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the fees and expenses of the Company, ’s counsel and independent accountants; (iiiv) shares issued the fees and expenses incurred in payment connection with the registration or qualification of the consideration Shares under the state securities or blue sky laws of such United States jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for an acquisition the Underwriters); (v) the cost of registering the uncertificated Shares; (vi) the costs and charges of any transfer agent and any registrar of the Shares; (vii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, Financial Industry Regulatory Authority, Inc. (“FINRA”); (viii) all expenses incurred by the Company (but not the Underwriters) in connection with any “road show” presentation to potential investors; and (iiiix) conventional banking arrangements all expenses and commercial debt financing) application fees related to the listing of the Company or any subsidiary or successor of Shares on the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeNew York Stock Exchange.

Appears in 1 contract

Samples: Underwriting Agreement (Standard Pacific Corp /De/)

Agreements of the Company. The (a) During the Support Period, the Company covenants and agrees with the Underwriters as followsto: (ai) The Registration Statement has become effectivesupport and take all steps necessary and desirable to consummate the Restructuring Transactions in accordance with this Agreement, including complying with the Milestones set forth herein; (ii) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring, negotiate in good faith and take all reasonable steps necessary or reasonably requested by the Consenting Creditors to address any such impediment, including (1) timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order (A) directing the appointment of an examiner with expanded powers or a trustee, (B) converting the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, (C) dismissing the Chapter 11 Cases, (D) approving an Alternative Restructuring, or (E) for relief that (x) is inconsistent with this Agreement in any material respect, or (y) would, or would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring Transactions; (2) timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order modifying or terminating the Company’s exclusive right to file and/or solicit acceptances of the Plan; (3) timely filing a formal objection to any motion, application or proceeding challenging (A) the amount, validity, allowance, character, enforceability or priority of any Claims of any of the Consenting Creditor, or (B) the validity, enforceability or perfection of any lien or other encumbrance securing any Claim of any of the Consenting Creditors; and (4) timely filing a formal written response in opposition to any objection filed with the Bankruptcy Court by any Person with respect to the DIP Facility (or motion filed by such Person that seeks to interfere with the DIP Facility) or any adequate protection granted to the Consenting Creditors pursuant to the Interim DIP Order, the Final DIP Order or otherwise; (iii) negotiate in good faith and use commercially reasonable efforts to execute, deliver, perform its obligations under, and if Rule 430A consummate the transactions contemplated by the Definitive Documents; (iv) promptly notify counsel to the Consenting Creditors in writing (and in any event within one (1) business day after obtaining knowledge thereof) of (1) the initiation, institution or commencement of any proceeding by a Governmental Entity or other Person (or communications indicating that the same may be contemplated or threatened) (x) involving the Company (including any assets, businesses, operations or activities of any the Company) or any of their respective current or former officers, employees, managers, directors, members or equity holders (in their capacities as such), or (y) challenging the validity of the transactions contemplated by this Agreement or any other Definitive Document or seeking to enjoin, restrain or prohibit this Agreement or any other Definitive Document or the consummation of the transactions contemplated hereby or thereby, (2) any material breach by the Company in any respect of any of its obligations, representations, warranties or covenants set forth in this Agreement, (3) any Material Adverse Effect, (4) the happening or existence of any event that shall have made any of the conditions precedent to any Party’s obligations set forth in (or to be set forth in) any of the Definitive Documents incapable of being satisfied prior to the Effective Date Milestone, (5) the occurrence of a Termination Event and/or (6) the receipt of notice from any Governmental Entity; or other Person alleging that the consent of such Person is used or may be required under any Organizational Document, contract, Law or otherwise in connection with the consummation of any part of the Restructuring Transactions; (v) maintain the good standing and legal existence under the Laws of the state in which each Company is incorporated, organized or formed, except to the extent that any failure to maintain such Company’s good standing arises solely as a result of the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing.Chapter 11 Cases; (bvi) The Company will not, during such period respond to commercially reasonable diligence requests requested by the Ad Hoc Group Advisors as soon as reasonably practicable after receipt thereof; (vii) except (1) with the Prospectus would be consent of the Requisite Consenting Creditors or (2) as required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this AgreementLaw, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every use commercially reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply conduct its business and operations only in the ordinary course in a manner that is consistent with past practices and in compliance with Law, except for any failure to operate its business and operations in the provisions of and make all requisite filings ordinary course in a manner that is consistent with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event past practice as a result of which the Prospectuspreparation and implementation of the Restructuring Transactions consistent with the terms of this Agreement, (w) use commercially reasonable efforts to maintain their physical assets, equipment, properties and facilities in their condition and repair as then amended of the Effective Date, ordinary wear and tear excepted, (x) maintain their respective books and records on a basis consistent with prior practice, (y) maintain all material insurance policies, or supplemented, wouldsuitable replacements therefor, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules full force and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and scheduleseffect, and (z) comply in all exhibits theretomaterial; respects with, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies perform all of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Acttheir respective obligations under, and maintain in full force and effect, each Material Contract (other than any Material Contract that has complied and will comply with expired after the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain Effective Date in accordance with its terms and except as expressly contemplated in the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations.Restructuring Term Sheet); and (hviii) Prior if any Debtor receives an unsolicited proposal or expression of interest with respect to the sale of the Shares to the Investorsan Alternative Restructuring, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of within two (2) years Business Days after the Closing. (n) The Company shall register with receipt of such proposal or expression of interest, notify the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization Ad Hoc Group Advisors of the price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costsreceipt thereof, with a reasonable number of bound volumes of such notice to include the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandviewmaterial terms thereof. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Restructuring Support Agreement (Core Scientific, Inc./Tx)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file the Prospectus (properly completed if Rule 430A has been used), subject endeavor to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to cause the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when the Registration Statement or such post-effective amendment has become effective. As used in this Agreement, the term "Registration Statement" means the registration statement relating to the Shares initially filed by the Company with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), as amended at the time when it was or is declared effective, including all financial schedules and exhibits thereto and including any information omitted therefrom pursuant to Rule 430A under the Act and included in the Prospectus and any registration statement filed with the Commission pursuant to Rule 462(b) under the Act (including the Registration Statement and any Prepricing Prospectus (as hereinafter defined) or Prospectus incorporated therein at the time such Registration Statement becomes effective); the term "Prepricing Prospectus" means each prospectus subject to completion filed with such registration statement or any amendment thereto (ii) of any request by including the Commission for any amendments prospectus subject to completion, if any, included in the Registration Statement or any amendment thereto at the time it was or supplements is declared effective); the term "Prospectus" means: (A) if the Company relies on Rule 434 under the Act, the Term Sheet relating to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for Shares that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, is first filed pursuant to Rule 430A424(b)(7) under the Act, it will use its best efforts to comply together with the provisions of and make all requisite filings Prepricing Prospectus identified therein that such Term Sheet supplements; (b) if the Company does not rely on Rule 434 under the Act, the prospectus first filed with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all such filings. (d424(b) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, ; or (c) if the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, does not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered rely on Rule 434 under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents Act and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing if no prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.is

Appears in 1 contract

Samples: Underwriting Agreement (Snelling & Snelling Inc)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) a. The Company will notify the Underwriters promptlyimmediately, and will, if requested, confirm such notification the notice in writing: , (i) when any post-effective amendment to of the effectiveness of the Registration Statement becomes effective; and any amendment thereto, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendments amendment to the Registration Statement or any amendment or supplements supplement to the Prospectus or for additional information; , (iiiiv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or the Prospectus, suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation of any proceedings for that such purpose and (v) during the period when the Prospectus is required to be delivered under the 1933 Act or Securities Exchange Act of 1934, as amended (the "1934 Act"), of any change in the Company's condition, financial or otherwise, or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment earnings, business affairs or business prospects of the Company or the happening of any event, including the filing of any information, documents or reports pursuant to the 1934 Act, that makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to state a material fact required by the 1933 Act or the 1933 Act Regulations to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and (v) of receipt by necessity to amend or supplement the Prospectus to comply with the 1933 Act or any other law. The Company shall use its best efforts to prevent the issuance of any notification with respect to any suspension stop order or order suspending the qualification or exemption of the qualification of the Shares for offer and sale in Securities under any jurisdiction. If state securities or Blue Sky laws, and, if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with Statement, or any state securities commission or other regulatory authority shall issue an order suspending the offering contemplated herebyqualification or exemption of the Securities under any state securities or Blue Sky laws, the Company will make shall use every reasonable effort to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the time. b. The Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 give the Underwriters promptly notice of all such filings. (d) If, at its intention to prepare or file any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement (including any post-effective amendment), any Rule 462(b) Registration Statement, any Term Sheet or an any amendment or supplement to the Prospectus that corrects such statement (including any revised prospectus or omission or effects such compliance Term Sheet and will deliver to preliminary prospectus which the Underwriters, without charge, such number of copies thereof as Company proposes for use by the Underwriters may reasonably request. The Company consents to in connection with the use offering of the Prospectus or any amendment or supplement thereto by Securities which differs from the Underwriters. (e) The Company will furnish to prospectus on file at the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of Commission at the time the Registration Statement as originally filed with the Commission becomes effective, whether or not such revised prospectus or Term Sheet and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a preliminary prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.Rule

Appears in 1 contract

Samples: Underwriting Agreement (Quest Medical Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters several Managers as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event event, including the filing of any information, documents or reports pursuant to the Exchange Act, that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the Rules and Regulations to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectuses (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the time. (c) The Company has omitted any information from will furnish to you, without charge, four signed copies of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the Registration Statement and will also furnish to notify you, without charge, such number of conformed copies of the Underwriters promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request. (d) If, at The Company will not (i) file any time when a Prospectus relating amendment to the Shares Registration Statement or make any amendment or supplement to the Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised or (ii) so long as, in the written opinion of counsel for the Managers (a copy of which shall be delivered to the Company), a prospectus is required to be delivered under in connection with sales by any Manager or dealer, file any information, documents or reports pursuant to the Securities Exchange Act, without delivering a copy of such information, documents or reports to you, as Lead Managers for the Managers, prior to or concurrently with such filing. (e) Prior to the execution and delivery of this Agreement, the Company becomes aware has delivered or will deliver to you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the occurrence International Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by dealers, prior to the date of the International Prospectus, of each International Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the Managers an International Prospectus is required by the Act or the Rules and Regulations to be delivered in connection with sales by any Manager or dealer, the Company will expeditiously deliver to each Manager and each dealer, without charge, as many copies of the International Prospectus (and of any event amendment or supplement thereto) as a result you may reasonably request. The Company consents to the use of the International Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and the Rules and Regulations and with the securities laws of the jurisdictions in which the ProspectusShares are offered by the several Managers and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the International Prospectus is required by the Act or the Rules and Regulations to be delivered in connection with sales by any Manager or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the written opinion of counsel for the Managers is required to be set forth in the International Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Registration StatementInternational Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto and will expeditiously furnish to the Managers and dealers a reasonable number of copies thereof. In the event that the Company and you, as then Lead Managers for the several Managers, agree that the International Prospectus should be amended or supplemented, wouldthe Company, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereofrequested by you, will promptly prepare and file with issue a press release announcing or disclosing the Commission, at matters to be covered by the Company’s expense, an amendment to the Registration Statement or an proposed amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementsupplement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the Managers in connection with the registration or qualification of the Shares for offer offering and sale by the several Managers and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably requestdesignate, if anyand will maintain such qualifications in effect for as long as may be required for the distribution of the Shares, and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, or subject it to general taxation, in any jurisdiction where it is not now so subject. (ih) The Company will apply make generally available to its securityholders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the net proceeds from the offering and sale effective date of the Offered Securities in Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable after the manner set forth in the Prospectus under the caption “Use end of Proceeds.” Without the written consent of Grandviewsuch period, which consolidated earnings statement shall satisfy the provisions of Section ll(a) of the Act. (i) During the period of three years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission or the Nasdaq National Market, and (ii) from time to time such other information concerning the Company as you may reasonably request; provided that the Company shall not be unreasonably withheld, conditioned or delayed, no proceeds of required -------- to provide to you any such information that is not available to the Offering will be used to pay outstanding loans from officers, directors or stockholderspublic. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Managers because of any failure or refusal on the part of the Company or any of the Selling Shareholders to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Lead Managers for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the Managers) incurred by you in connection herewith. (k) If Rule 430A of the Act is employed, the Company will timely file the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing. (l) For a period of 180 days after the date hereof (the "Lock-up Period"), neither the Company nor LaSalle Re will, without the prior written consent of Xxxxx Xxxxxx Inc., sell, offer to sell, solicit an offer to buy, contract to sell, grant any option or right to purchase or acquire, or otherwise transfer or dispose of, any common shares of the Company or LaSalle Re or any of their respective subsidiaries (or any securities convertible into or exercisable or exchangeable for such common shares), except that the Company may issue Common Shares pursuant to stock purchase plans and grant options pursuant to stock option plans. (m) The Company has furnished or will furnish to you "lock-up" letters, signed by each of the officers and directors set forth under the heading "Management" in the Prospectuses and each of the Selling Shareholders, stating that, for the Lock-up Period, such officer, director or Selling Shareholder will not, without the prior written consent of Xxxxx Xxxxxx Inc., sell, offer to sell, solicit an offer to buy, contract to sell, grant any option or right to purchase or acquire, or otherwise transfer or dispose of, any common shares of the Company or any of its subsidiaries (or any securities convertible into or exercisable or exchangeable for such common shares), except that such officer, director, or Selling Shareholder may (i) sell shares subject to the over-allotment option pursuant to the U.S. Underwriting Agreement; (ii) sell shares repurchased by the Company pursuant to the Company's capital management strategy (as contemplated in the Prospectuses); and (iii) transfer shares as bona fide gifts and pledge shares so long as the donees or the pledgees, as the case may be, agree in writing with the Managers to be bound by the terms of such lock-up letter; each such lock-up letter shall also state that prior to the expiration of the Lock-Up Period, such officer, director or Selling Shareholder will not announce or disclose any intention to do anything after the expiration of such period which such officer, director or Selling Shareholder is prohibited, as provided in this Section 5(m), from doing during such period. (n) Except as stated in this Agreement and in the U.S. Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, neither the Company nor any of its subsidiaries has taken or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Shares or any other security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement. (o) The Company will use its best efforts to ensure that have the Common Shares are listed on the NASDAQ Capital Nasdaq National Market at concurrently with the time effectiveness of the Initial Closing, registration statement and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate under the sale or resale of any of the SharesExchange Act. (p) The Company shall, upon hereby validly and irrevocably submits to the reasonable request of the Underwriters, deliver written affirmation jurisdiction of any certificate delivered federal or state court sitting in The City of New York and irrevocably waive, to the Underwriters pursuant fullest extent permitted by law, any objection that either of them may now or hereafter have to Section 7 prior to the laying of venue of any Closing Date following the Initial Closing Datesuch suit, action or proceeding brought in any such court based on or arising under this Agreement and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a will use all reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal commercial efforts to co-manage any public underwriting satisfy on or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following before the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale Date all conditions contained in any such noticeSection 10 hereof to the Managers' obligations to purchase the Shares.

Appears in 1 contract

Samples: International Underwriting Agreement (Lasalle Re Holdings LTD)

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of Company will cause the Prospectus is otherwise Supplement to be filed as required under Rule 424(b), by Section 3(a) hereof (but only if you have not reasonably objected thereto by notice to the Company will file the Prospectus (properly completed if Rule 430A has after having been used), subject furnished a copy a reasonable time prior to the prior approval of Grandview, pursuant to Rule 424(bfiling) within the prescribed time period and will provide a copy notify you promptly of such filing to Grandview promptly following such filing. (b) . The Company will not, not during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter any Underwriters or dealer in connection with the offering contemplated by this Agreementdealer, file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Representatives within a reasonable period of time prior to the 11 12 filing thereof and Grandview the Representatives shall not have reasonably objected thereto in good faith. (cb) The Company will notify the Underwriters Representatives promptly, and will, if requested, will confirm such notification advice in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effective; , (ii2) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv4) of becoming aware of the occurrence happening of any event during the period mentioned in the second sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; misleading and (v5) of receipt by the Company or any representative or attorney of the Company of any notification with respect other communication from the Commission relating to any suspension of the qualification of Company, the Shares for offer and sale in any jurisdictionRegistration Statement, or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If . (c) The Company will furnish to the Company has omitted any information from Representatives, upon request and without charge, two signed copies of the Registration StatementStatement and of any post-effective amendment thereto, pursuant including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to Rule 430A, it will use its best efforts to comply with be incorporated by reference into the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all such filingsProspectus). (d) If, at any time when a Prospectus relating to The Company will comply with all the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence provisions of any event as a result of which the Prospectus, as then amended or supplemented, would, undertakings contained in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the . (e) The Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriterseach Underwriter, without charge, as many copies of the Prospectus containing the Prospectus Supplement or any amendment or supplement thereto as such number of copies thereof as the Underwriters Underwriter may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counselby all dealers to whom the Shares may be sold, without charge: (i) one conformed copy of the Registration Statement as originally filed both in connection with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus offering or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the 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 Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; provided, that in no event shall the Company Underwriters should 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under in order to make any statement therein, in the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds light of the Offering will be used to pay outstanding loans from officerscircumstances under which it was made, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountantsnot misleading, or comparable accountants, for a period of at least three (3) years after if it is necessary to supplement or amend the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue Prospectus to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations comply with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closinglaw, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.will

Appears in 1 contract

Samples: Underwriting Agreement (Gables Residential Trust)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (b) To furnish to you, without charge, five signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits but including documents incorporated therein by reference, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the initiation Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in amendment to the Registration Statement or amendment or supplement to the Prospectus untrue which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to cause any material respect or that requires the making of any changes in such amendment to the Registration Statement to become promptly effective. (d) Prior to 10:00 a.m., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances in which they are madewhen the Prospectus is delivered to a purchaser, not misleading; , or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and (v) file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in light of receipt by the Company of any notification circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with respect applicable law, and to furnish to each Underwriter and to any suspension dealer as many copies thereof as such Underwriter or dealer may reasonably request. (f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction. If at jurisdiction in which it is not now so qualified or to take any time action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyProspectus, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant any preliminary prospectus or preliminary prospectus supplement or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) To mail and make generally available to Rule 430A, it will use its best efforts to comply with stockholders as soon as practicable an earnings statement that shall satisfy the provisions of and make all requisite filings with Section 11(a) of the Commission pursuant to said Rule 430A Act, and to notify the Underwriters promptly of all advise you in writing when such filingsstatement has been so made available. (dh) IfDuring the period of three years after the date of this Agreement, at any time when a Prospectus relating to furnish to you as soon as available copies of all reports or other communications furnished to the Shares is required record holders of Common Stock or furnished to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies or any national securities exchange on which any class of securities of the Prospectus or any amendment or supplement thereto Company is listed and such other publicly available information concerning the Company and its subsidiaries as the Underwriters you may reasonably request. (fi) The During the period of five years after the date of this Agreement, to mail as soon as reasonably practicable after the end of each fiscal year to the record holders of its Common Stock a financial report of the Company will comply and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with all comparable information as of the undertakings contained in end of and for the Registration Statementpreceding year, certified by independent certified public accountants. (gj) The Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the obligations of the Company represents and agrees thatand, except for as otherwise provided in this Agreement, the Approved FWPSelling Stockholders under this Agreement, it has not including: (i) the fees, disbursements and will notexpenses of the Company's counsel, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make Company's accountants and any offer relating Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined Act and all other fees and expenses in Rule 405 promulgated under the Securities Act, required to be filed connection with the Commission. Any such free writing prospectus consented to by Grandview preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus or preliminary prospectus supplement, the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied all amendments and will comply with the requirements said Rule 433 applicable supplements to any Permitted Free Writing Prospectusof the foregoing, including timely filing with the Commission where required, legending mailing and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant delivering of copies thereof to the Rules Underwriters and Regulations. dealers in the quantities specified herein, (hii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters (other than any transfer or other taxes payable thereon, which shall be paid by the Company will cooperate Selling Stockholders), (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with Grandview and Underwriter Counsel the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that in no event shall Inc., (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar and/or depositary, and (viii) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it and the Selling Stockholders hereunder for which provision is not now so qualified otherwise made in this Section. The provisions of this Section shall not supersede or to take otherwise affect any action which would subject it to general service agreement that the Company and the Selling Stockholders may otherwise have for allocation of process in any jurisdiction where it is not now so subjectsuch expenses among themselves. (ik) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will To use its best efforts to ensure that do and perform all things required or necessary to be done and performed under this Agreement by the Shares are listed on Company prior to the NASDAQ Capital Market at Closing Date or any Option Closing Date, as the time of the Initial Closingcase may be, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after satisfy all conditions precedent to the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 p.m., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Fred Meyer Inc)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, either prior to the Applicable Time or thereafter during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter Underwriter or dealer in connection with the offering contemplated by this Agreementa dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Representatives within a reasonable period of time prior to the filing thereof and Grandview the Representatives shall not have reasonably objected thereto in good faith. (cb) The Company will notify the Underwriters Representatives promptly, and will, if requested, will confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement has been filed or becomes effective; effective or any amendment or supplement to the Prospectus has been filed, (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration StatementStatement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the ProspectusProspectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of becoming aware of the occurrence happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the 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 notification with respect other communication from the Commission relating to the Company, the Registration Statement, any suspension of preliminary prospectus or the qualification of the Shares for offer and sale in any jurisdictionProspectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with or preventing or suspending the offering contemplated herebyuse of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, Statement pursuant to Rule 430A430B of the Rules and Regulations, it 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 430B and to notify the Underwriters Representatives 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 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) IfThe Company will comply with all the provisions of any undertakings contained in the Registration Statement. (e) So long as delivery of a prospectus by an 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 each of the Underwriters, without charge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus and each Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto by the 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 that 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 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. If at any time when a following issuance of an Issuer Free Writing Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the Prospectus, as then amended or supplemented, would, information contained in the reasonable judgment of counsel to Registration Statement, the Company Pricing Prospectus or Underwriter Counsel, the Prospectus or included or would include any an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeprevailing at that subsequent time, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview Xxxxxxx & Company, LLC and, subject to Section 4(b) hereofif requested by Xxxxxxx & Company, LLC, will promptly prepare and file with the Commissionamend or supplement, at the Company’s its own expense, an amendment such Issuer Free Writing Prospectus to the Registration Statement eliminate or an amendment or supplement to the Prospectus that corrects correct such conflict, untrue statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably requestomission. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable Prior to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale public offering of the Shares to the InvestorsShares, the Company will cooperate with Grandview the Representatives and Underwriter Counsel counsel to the Underwriters in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Representatives may reasonably request, if any; 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 that would subject it to general service of process in any jurisdiction where it is not now so subject. (ig) The Company will, so long as required under the Rules and Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ 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 apply make generally available to holders of its securities as soon as may be practicable, but in no event later than the net proceeds from 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 that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the 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. (i) Whether or not the 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 obligations of the Company 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, the Base Prospectus, the Prospectus Supplement, Pricing Prospectus, Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement thereto, (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, 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, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered Securities Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the listing of the Shares on the NGM, (vi) 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, (vii) the manner set forth in registration or qualification of the Prospectus Shares for offer and sale under the caption “Use securities or Blue Sky laws of Proceeds.” Without such jurisdictions designated pursuant to Section 4(f), including the written consent fees, disbursements and other charges of Grandviewcounsel to the Underwriters in connection therewith, which shall 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 be unreasonably withheldthose of counsel for the Underwriters, conditioned or delayed, no proceeds except as otherwise provided herein) and of the Offering will be used to pay outstanding loans from Accountants, (ix) the transfer agent for the Shares, and (x) any travel expenses of the Company’s officers, directors and employees and any other expenses of the Company in connection with attending or stockholdershosting meetings with prospective purchasers of the Shares. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any time, directly or indirectly, take any action intended, designed or which that might reasonably be expected, expected to cause or result in, or which that will constitute, stabilization of the price of the Shares shares of Common Stock to facilitate the sale or resale of any of the Shares. (pk) The Company shall, upon will apply the reasonable request net proceeds from the offering and sale of the Underwriters, deliver written affirmation Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateProceeds. (ql) The Company shall supply Grandview During the period beginning from the date hereof and its counsel, at continuing to and including the Company’s costs, with a reasonable number of bound volumes date that is 90 days after the date of the public offering materials within a reasonable time after Prospectus, without the Closingprior written consent of Xxxxxxx & Company, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the ClosingLLC, the Company will not (1) offer, sell, contract to sell, pledge, grant Grandview the right options, warrants or rights to purchase, or otherwise dispose of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary other securities convertible into or successor exchangeable for its Common Stock or other equity security (other than pursuant to employee stock option plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding 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; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 4(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Xxxxxxx & Company, LLC waives, in writing, such extension. (m) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of Xxxxxxx & Company, LLC, grant options to purchase shares of Common Stock at a price less than the market 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 during without the one year period following prior written consent of Xxxxxxx & Company, LLC. (n) The Company will use its best efforts to cause each of its officers and directors designated by the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled Representatives to no less than 33.33% of enter into lock-up agreements with the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as Representatives substantially in the lead manager of any such offering. If Grandview fails to accept form set forth in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeSchedule III hereto.

Appears in 1 contract

Samples: Underwriting Agreement (Globecomm Systems Inc)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as reasonably practicable and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when it receives notice that the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of its receipt of notice of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or any amendment or supplements to the Prospectus or for additional information; (iiiii) of its receipt of notice of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose or such purpose; and (iii) within the threat thereof; period of time referred to in paragraph (ivf) below, of its becoming aware of any change in the occurrence Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (c) The Company will furnish to you, without charge, (i) three signed copies of the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings registration statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the registration statement, (ii) such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (iv) three copies of the exhibits to notify the Underwriters promptly of all such filingsIncorporated Documents. (d) IfThe Company will not (i) file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall object after being so advised or (ii) so long as, at any time when in the opinion of counsel for the Underwriters, a Prospectus relating to the Shares is required to be delivered under in connection with sales by any Underwriter or dealer, file any information, documents or reports pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") without delivering a copy of such information, documents or reports to you, as representatives of the Underwriters, prior to or concurrently with such filing. (e) Prior to the execution and delivery of this Agreement, the Company becomes aware has delivered to you, without charge, in such quantities as you have requested, copies of each form of the occurrence Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of any event as a result the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may request. The Company con- sents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, supplement or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the CommissionCommission an appropriate supplement or amendment thereto, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will expeditiously furnish to the Underwriters and Underwriter Counseldealers a reasonable number of copies thereof. In the event that the Company and you, without charge: (i) one conformed copy as Representatives of the Registration Statement as originally filed with several Underwriters, agree that the Commission and each amendment theretoProspectus should be amended or supplemented, including financial statements and schedulesthe Company, and all exhibits theretoif requested by you, (ii) so long as will promptly issue a prospectus relating to press release announcing or disclosing the Shares is required matters to be delivered under covered by the Securities Act, as many copies of the Prospectus or any proposed amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementsupplement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act. (i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company or the Selling Stockholder to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares to be sold by it hereunder substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersProspectus. (jl) The If Rule 430A of the Act is employed, the Company will use its best efforts timely file the Prospectus pursuant to ensure that Rule 424(b) under the Shares are listed on the NASDAQ Capital Market at Act and will advise you of the time and manner of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closingfiling. (km) The Except as provided in this Agreement, the Company shall retain a firm will not sell, contract to sell or otherwise dispose of independent certificate public accountants, acceptable to Grandview, which will have the responsibility any Common Stock or any securities convertible into or exercisable or exchangeable for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountantsCommon Stock, or comparable accountantsgrant any options or warrants to purchase Common Stock, for a period of at least three (3) years 90 days after the Closing. (l) The date of the Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc.; provided that the Company shall retain a transfer agent for the Company’s be permitted to (i) grant options pursuant to [ ] and to issue Common Stock and continue to retain upon the exercise of any option granted under such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closingplans. (n) The Company shall register with has furnished or will furnished to you "lock-up" letters, in form and substance satisfactory to you, signed by each of the Corporation Records Service published by Standard & Poor’s Corporation stockholders, officers and covenant to maintain such registration for a period directors of three (3) years from the ClosingCompany set forth on Schedule II hereto. (o) The Except as stated in this Agreement and in the Prepricing Prospectus and Prospectus, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, re- xxxx in stabilization or which will constitute, stabilization manipulation of the price of the Shares Common Stock to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon will use its best efforts to have the reasonable request shares of Common Stock which it agrees to sell under this Agreement approved for inclusion on the Underwriters, deliver written affirmation of any certificate delivered to NASDAQ National Market on or before the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Motorcar Parts & Accessories Inc)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, either prior to the Applicable Time or thereafter during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter Underwriter or dealer in connection with the offering contemplated by this Agreementa dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Representative within a reasonable period of time prior to the filing thereof and Grandview the Representative shall not have reasonably objected thereto in good faith. (cb) The Company will notify the Underwriters Representative promptly, and will, if requested, will confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement has been filed or becomes effective; effective or any amendment or supplement to the Prospectus has been filed, (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration StatementStatement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the ProspectusProspectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; purpose, (iv) of becoming aware of the occurrence happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the 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 notification with respect other communication from the Commission relating to the Registration Statement, any suspension of preliminary prospectus, the qualification of Base Prospectus, the Shares for offer and sale in any jurisdictionProspectus Supplement or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with or preventing or suspending the offering contemplated herebyuse of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, Statement pursuant to Rule 430A430B of the Rules and Regulations, it 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 430B and to notify the Underwriters Representative 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 Representative, without charge, a 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 Representative, 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) IfThe Company will comply with all the provisions of any undertakings contained in the Registration Statement. (e) So long as delivery of a prospectus by an 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 each of the Underwriters, 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 Representative may reasonably request. The Company consents 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 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 that 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 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 Representative 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 Representative after reasonable notice thereof. If at any time when a following issuance of an Issuer Free Writing Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the Prospectus, as then amended or supplemented, would, information contained in the reasonable judgment of counsel to Registration Statement, the Company Pricing Prospectus or Underwriter Counsel, the Prospectus that has not been superseded or modified by such Issuer Free Writing Prospectus or included or would include any an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeprevailing at that subsequent time, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview Xxxxxxx & Company, LLC and, subject to Section 4(b) hereofif requested by Xxxxxxx & Company, LLC, will promptly prepare and file with the Commissionamend or supplement, at the Company’s its own expense, an amendment such Issuer Free Writing Prospectus to the Registration Statement eliminate or an amendment or supplement to the Prospectus that corrects correct such conflict, untrue statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably requestomission. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable Prior to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale public offering of the Shares to the InvestorsShares, the Company will cooperate with Grandview the Representative and Underwriter Counsel counsel to the Underwriters in connection with the registration or qualification of the Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as Grandview the Representative may reasonably request, if any; 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 that would subject it to general service of process or taxation as a foreign corporation in any jurisdiction where it is not now so subject. (ig) [Reserved.] (h) The Company will apply make generally available to holders of its securities as soon as may be practicable, but in no event later than the net proceeds from 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 that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the 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. (i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company 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, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, if applicable, (iii) furnishing (including costs of shipping and mailing) copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered Securities Shares by the Underwriters or by dealers to whom Shares may be sold, (iv) the notification of the listing of additional shares with respect to the Shares on the NGM, (v) any filings required to be made in connection with clearance of the manner set forth offering of the Shares with FINRA (including the reasonable and documented fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vi) the Prospectus registration or qualification of the Shares for offer and sale under the caption “Use state or foreign securities or Blue Sky laws of Proceeds.” Without such jurisdictions designated pursuant to Section 4(f) and the written consent preparation, printing and distribution of Grandviewany Blue Sky memoranda (including the reasonable and documented fees, which shall not be unreasonably withhelddisbursements and other charges of counsel to the Underwriters in connection therewith), conditioned or delayed(vii) fees, no proceeds disbursements and other charges of counsel to the Company and of the Offering will be used Accountants, (viii) the transfer agent for the Shares and (ix) “road show” presentations to pay outstanding loans from prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or stockholdershosting meetings, but not including travel expenses for personnel of any of the Underwriters); provided, however, that the amount payable by the Company with respect to fees and disbursements of counsel for the Underwriters incurred pursuant to clauses (v) and (vi) shall not exceed $20,000 in the aggregate. Except as expressly set forth herein, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, in connection with the offering and sale of the Shares. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any time, directly or indirectly, take any action intended, designed or which might that would reasonably be expected, expected to cause or result in, or which that will constitute, stabilization of the price of the Shares shares of Common Stock to facilitate the sale or resale of any of the Shares. (pk) The Company shall, upon will apply the reasonable request net proceeds from the offering and sale of the Underwriters, deliver written affirmation Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateProceeds. (ql) The Company shall supply Grandview During the period beginning from the date hereof and its counsel, at continuing to and including the Company’s costs, with a reasonable number of bound volumes date that is 90 days after the date of the public offering materials within a reasonable time after Prospectus, without the Closingprior written consent of Xxxxxxx & Company, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the ClosingLLC, the Company will not (1) offer, sell, contract to sell, pledge, grant Grandview the right options, warrants or rights to purchase, or otherwise dispose of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary other securities convertible into or successor exchangeable for its Common Stock or other equity security (other than pursuant to employee stock plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding 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; provided, that the Company may (A) effect the transactions contemplated hereby and (B) (I) issue Common Stock or options to purchase shares of Common Stock in connection with an acquisition, merger or other business combination, not to exceed in the aggregate the number of shares of Common Stock equal to 10% of the number of shares of Common Stock outstanding immediately following the closing of the offering contemplated by this Agreement and (II) issue shares of Common Stock or options to purchase shares of Common Stock, or issue shares of Common Stock upon exercise of options, pursuant to any equity plan or arrangement described in the Registration Statement, the Pricing Prospectus or the Prospectus, but only if, in the case of clauses (I) and (II), the holders of such shares of Common Stock or options agree in writing with the Underwriters not to sell, offer, dispose of or otherwise transfer any such shares of Common Stock or options during such period without the prior written consent of Xxxxxxx & Company, LLC (which consent may be withheld in its sole discretion); provided, further, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 5(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Xxxxxxx & Company, LLC waives, in writing, such extension. (m) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of Xxxxxxx & Company, LLC, grant options to purchase shares of Common Stock at a price less than the public offering price of the Shares (except pursuant to employee stock plans existing as of the date of this Agreement). 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 during without the one year period following prior written consent of Xxxxxxx & Company, LLC. (n) The Company will cause each of its named executive officers, directors and certain stockholders designated by the Closing Date. If Grandview accepts such right Representative to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of first refusalXxxxxxx & Company, Grandview shall be entitled LLC, sell, contract to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage sell or other investment banking compensation for any such offering and shall act as the lead manager otherwise dispose of any shares of Common Stock or rights to acquire such offering. If Grandview fails shares according to accept the terms set forth in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeSchedule III hereto.

Appears in 1 contract

Samples: Underwriting Agreement (Parametric Sound Corp)

Agreements of the Company. The Company covenants and agrees with the Underwriters Placement Agent as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandviewthe Placement Agent, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview the Placement Agent promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares Offered Securities by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview the Placement Agent within a reasonable period of time prior to the filing thereof and Grandview the Placement Agent shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters Placement Agent promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional informationinformation related to the offering of the Offered Securities or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, but only during the period mentioned in Section 4(b); (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof, but only during the period mentioned in Section 4(b); (iv) of becoming aware of the occurrence of any event during the period mentioned in Section 4(b) that in the reasonable judgment of the Company makes any statement made in the Registration Statement Statement, the Pricing Disclosure Materials or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement Statement, the Pricing Disclosure Materials or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company during the period mentioned in Section 4(b) of any notification with respect to any suspension of the qualification of the Shares Offered Securities for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every use commercially reasonable effort efforts to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters Placement Agent promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares Offered Securities is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Pricing Disclosure Materials, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agent, at any time to amend or supplement the Prospectus Prospectus, the Pricing Disclosure Materials or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview the Placement Agent and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement Statement, an amendment or supplement to the Pricing Disclosure Materials or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the UnderwritersPlacement Agent, without charge, such number of copies thereof as the Underwriters Placement Agent may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersPlacement Agent. (e) The Company will furnish furnish, upon request, to the Underwriters Placement Agent and Underwriter Counselits counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, ; and (ii) so long as a prospectus relating to the Shares Offered Securities is required to be delivered under the Securities Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Underwriters Placement Agent may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares Offered Securities to the Investors, the Company will cooperate with Grandview the Placement Agent and Underwriter Counsel its counsel in connection with the registration or qualification of the Shares Offered Securities for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Placement Agent may reasonably request, if any; 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. (h) The Company will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus without consulting with the Placement Agent. (i) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (j) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Pricing Disclosure Materials and the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (jk) The Company will use its best efforts to ensure that the Shares Offered Securities are listed or quoted on the NASDAQ Nasdaq Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares Offered Securities to facilitate the sale or resale of any of the Offered Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Placement Agency Agreement (Neonode Inc.)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of any of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective, and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you five (5) signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits but including documents incorporated therein by reference, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinwill not, in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending June 30, except for 2000 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel that the Company is obligated to pay by contract (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto not to exceed $15,000), if any; provided(v) the filing fees and fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that in no event shall Inc., (vi) all costs and expenses incident to the listing of the Shares on the New York Stock Exchange (the "NYSE"), (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident solely to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it and the Selling Stockholders hereunder for which provision is not now so qualified or to take any action which would subject it to general service otherwise made in this Section. The provisions of process in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which this Section shall not be unreasonably withheld, conditioned supersede or delayed, no proceeds otherwise affect any agreement that the Company and the Selling Stockholders may otherwise have for allocation of the Offering will be used to pay outstanding loans from officers, directors or stockholderssuch expenses among themselves. (j) The Company will To use its best efforts to ensure that list the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the ClosingNYSE. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company on or prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Penton Media Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding, to the extent known by the Company, for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every use its reasonable effort best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you seven conformed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be reasonably satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such U.S. jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; PROVIDED, HOWEVER, that the Company will comply with all the undertakings contained shall not be required in the Registration Statementconnection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending June 23, except for 2001 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the sale performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate with Grandview and Underwriter Counsel including any transfer or other taxes payable thereon, (iii) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto not to exceed $5,000), if any; provided(iv) the filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that Inc. (the "NASD"), (v) all fees and expenses in no event shall connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on New York Stock Exchange ("NYSE"), (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar and/or depositary, (viii) the fees and expenses of the QIU (including the reasonable fees and disbursements of counsel to the QIU not to exceed $5,000), and (ix) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it hereunder for which provision is not now so qualified or to take any action which would subject it to general service of process otherwise made in any jurisdiction where it is not now so subjectthis Section 5(h). (i) The Company will apply To use its best efforts to list the net proceeds from Shares on the offering NYSE and sale to maintain the listing of the Offered Securities in Shares on the manner set forth in NYSE for a period of three years after the Prospectus under the caption “Use date of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersthis Agreement. (j) The Company will To use its reasonable best efforts to ensure that do and perform all things required or necessary to be done and performed under this Agreement by the Shares are listed on Company prior to the NASDAQ Capital Market at Closing Date or any Option Closing Date, as the time of the Initial Closingcase may be, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after satisfy all conditions precedent to the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pk) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (ql) The Company shall supply Grandview and its counsel, at That in connection with the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the ClosingDirected Share Program, the Company will grant Grandview notify the right of first refusal transfer agent as to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales the Directed Shares that will be restricted to employees under any compensation or stock option plan approved the extent required by the shareholders NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the Company, (ii) shares issued in payment effectiveness of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of Registration Statement. The Underwriters will notify the Company or any subsidiary or successor as to which Participants will need to be so restricted. The Company will direct the removal of such transfer restrictions upon the Company during expiration of such period of time. (m) To pay all reasonable fees and disbursements of counsel incurred by the one year period following Underwriters in connection with the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeDirected Share Program.

Appears in 1 contract

Samples: Underwriting Agreement (Charles River Laboratories International Inc)

Agreements of the Company. The Company covenants and agrees with the several U.S. Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's business, assets, condition (financial or the threat thereof; (ivotherwise) or results of becoming aware operations, or of the occurrence happening of any event event, including the filing of any information, documents or reports pursuant to the Exchange Act, that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectuses (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the time. (c) The Company has omitted any information from will furnish to you, without charge, one signed copy of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the Registration Statement and will also furnish to notify you, without charge, such number of conformed copies of the Underwriters promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request. (d) If, at The Company will not (i) file any time when a Prospectus relating amendment to the Shares Registration Statement or make any amendment or supplement to the Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised or (ii) so long as, in the written opinion of counsel for the U.S. Underwriters (a copy of which shall be delivered to the Company), a prospectus is required to be delivered under in connection with sales by any U.S. Underwriter or dealer, file any information, documents or reports pursuant to the Securities Exchange Act, without delivering a copy of such information, documents or reports to you, as Representatives of the U.S. Underwriters, prior to or concurrently with such filing. (e) Prior to the execution and delivery of this Agreement, the Company becomes aware has delivered or will deliver to you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the occurrence U.S. Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by dealers, prior to the date of the U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the U.S. Underwriters a U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer, the Company will expeditiously deliver to each U.S. Underwriter and each dealer, without charge, as many copies of the U.S. Prospectus (and of any event amendment or supplement thereto) as a result you may reasonably request. The Company consents to the use of the U.S. Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the ProspectusShares are offered by the several U.S. Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the written opinion of counsel for the U.S. Underwriters is required to be set forth in the U.S. Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make supplement or amend the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the U.S. Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the Commission, at the Company’s expense, Commission an appropriate supplement or amendment thereto and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance U.S. Underwriters and will deliver to the Underwriters, without charge, such dealers a reasonable number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementthereof. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the U.S. Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several U.S. Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act; provided that such requirement shall be deemed satisfied if the Company complies with the provisions of Rule 158 of the Act. (i) During the period of one year hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission or the NASDAQ National Market, and (ii) from time to time such other information concerning the Company as you may reasonably request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the U.S. Underwriters because of any failure or refusal on the part of the Company or any of the Selling Stockholders to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the U.S. Underwriters) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares to be sold by it hereunder substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectuses. (l) The If Rule 430A of the Act is employed, the Company shall retain a transfer agent for will timely file the Company’s Common Stock Prospectuses pursuant to Rule 424(b) under the Act and continue to retain will advise you of the time and manner of such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for For a period of two (2) years 180 days after the Closingdate hereof (the "Lock-up Period"), the Company will not, without the prior written consent of Xxxxx Xxxxxx Inc. and Xxxxxxx Xxxxx, offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock exercisable within the Lock-up Period, except for (i) sales to the U.S. Underwriters pursuant to this Agreement and the Managers pursuant to the International Underwriting Agreement, (ii) transactions disclosed in the Prospectuses or (iii) the grant of options in the ordinary course of business pursuant to the Company's Stock Incentive Plan (provided that any recipient of options exercisable within 180 days of the date hereof shall execute an agreement for the benefit of the U.S. Underwriters not to transfer such options (or shares of Common Stock underlying such options) for the remainder of such 180-day period). (n) The Company shall register with the Corporation Records Service published has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by Standard & Poor’s Corporation each of its current officers and covenant to maintain such registration for a period directors and each of three (3) years from the Closingits stockholders designated by you. (o) The Except as stated in this Agreement and in the International Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Common Stock to facilitate the sale or resale of any of the Shares. (p) The Company shallwill use its best efforts to have the Common Stock listed, upon subject to notice of issuance, on the reasonable request NASDAQ National Market concurrently with the effectiveness of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateRegistration Statement. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: u.s. Underwriting Agreement (Global Crossing LTD)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or any amendment or supplements to the Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event event, including the filing of any information, documents or reports pursuant to the Exchange Act, that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the Rules and Regulations to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (c) The Company will furnish to you without charge (i) four signed copies of the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings registration statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the registration statement, (ii) such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may reasonably request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may reasonably request, and (iv) four copies of the exhibits to notify the Underwriters promptly of all such filingsIncorporated Documents. (d) IfThe Company will not (i) file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus, at any time when of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised or (ii) so long as, in the written opinion of counsel for the Underwriters (a copy of which shall be delivered to the Company), a Prospectus relating is required by the Act or the Rules and Regulations to be delivered in connection with sales by any Underwriter or dealer, file any information, document or report pursuant to the Exchange Act that upon filing becomes an Incorporated Document, without delivering a copy of such information, document or report to you, prior to or concurrently with such filing. (e) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and the Rules and Regulations and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a Prospectus is required by the Act or the Rules and Regulations to be delivered in connection with sales by any Underwriter or dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and the Rules and Regulations and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act or the Rules and Regulations to be delivered in connection with sales by any Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the written opinion of counsel for the Underwriters is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, supplement or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus (or to file under the Registration Statement Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the CommissionCommission an appropriate supplement or amendment thereto (or to such document), at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will expeditiously furnish to the Underwriters and Underwriter Counseldealers a reasonable number of copies thereof. In the event that the Company and you agree that the Prospectus should be amended or supplemented, without charge: (i) one conformed copy of the Registration Statement as originally filed with Company, if requested by you, will promptly issue a press release announcing or disclosing the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required matters to be delivered under covered by the Securities Act, as many copies of the Prospectus or any proposed amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementsupplement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably requestdesignate, if anyand will maintain such qualifications in effect for as long as may be required for the distribution of the Shares, and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, or subject it to general taxation, in any jurisdiction where it is not now so subject. (ih) The Company will apply make generally available to its securityholders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the net proceeds from the offering and sale effective date of the Offered Securities in Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable after the manner set forth in the Prospectus under the caption “Use end of Proceeds.” Without the written consent of Grandviewsuch period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act. (i) During the period of three years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission or the New York Stock Exchange ("NYSE") and (ii) from time to time such other information concerning the Company as you may reasonably request; provided that the Company shall not be unreasonably withheld, conditioned or delayed, no proceeds of required to provide to you any such information that is not available to the Offering will be used to pay outstanding loans from officers, directors or stockholderspublic. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) incurred by you in connection herewith. (k) If Rule 430A of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing. (l) Except as stated in this Agreement and in the Prepricing Prospectus and Prospectus, neither the Company nor any of its subsidiaries has taken or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Shares or any other security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement. (m) The Company will use its best efforts to ensure that have the Shares are registered under the Exchange Act and listed on the NASDAQ Capital Market at NYSE concurrently with the time effectiveness of the Initial Closing, registration statement and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after and the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation registration of the financial statements and Shares under the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the ClosingExchange Act. (n) The Company shall register with hereby validly and irrevocably submits to the Corporation Records Service published jurisdiction of any federal or state court sitting in The City of New York and irrevocably waives, to the fullest extent permitted by Standard & Poor’s Corporation law, any objection that it may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in any such court based on or arising under this Agreement and covenant to maintain any claim that any such registration for a period of three (3) years from the Closingsuit, action or proceeding brought in any such court has been brought in an inconvenient forum. (o) The Company will not at any time, directly use all reasonable commercial efforts to satisfy on or indirectly, take any action intended, or which might reasonably be expected, before the Closing Date all conditions contained in Section 8 hereof to cause or result in, or which will constitute, stabilization of the price of the Shares Underwriters' obligations to facilitate the sale or resale of any of purchase the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Lasalle Re Holdings LTD)

Agreements of the Company. The Company covenants and agrees with the Underwriters Placement Agents as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandviewthe Placement Agents, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview the Placement Agents promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview the Placement Agents within a reasonable period of time prior to the filing thereof and Grandview the Placement Agents shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters Placement Agents promptly, and will, if requested, confirm such notification in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (ii2) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional informationinformation related to the offering of the Shares or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, but only during the period mentioned in Section 4(b); (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof, but only during the period mentioned in Section 4(b); (iv4) of becoming aware of the occurrence of any event during the period mentioned in Section 4(b) that in the reasonable judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters Placement Agents promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview the Placement Agents and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the UnderwritersPlacement Agents, without charge, such number of copies thereof as the Underwriters Placement Agents may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersPlacement Agents. (e) The Company will furnish furnish, upon request, to the Underwriters Placement Agents and Underwriter Counselits counsel, without charge: charge (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Underwriters Placement Agents may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Placement Agents and Underwriter Counsel their counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Placement Agents may reasonably request, if any; 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. (ih) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (ji) The Company will use its best efforts to ensure that the Shares are listed or quoted on the NASDAQ Capital Global Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (oj) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Placement Agency Agreement (Sequenom Inc)

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Agreements of the Company. The Company covenants and agrees with the Underwriters Placement Agent as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this AgreementAgreement (the “Prospectus Delivery Period”), file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Placement Agent within a reasonable period of time prior to the filing thereof and Grandview the Placement Agent shall not have reasonably objected thereto in good faith. (cb) The During the Prospectus Delivery Period, the Company will notify the Underwriters Placement Agent promptly, and will, if requested, will confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; , (ii) of any request by any securities or other governmental authority (including, without limitation, the Commission Commission) of any jurisdiction for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii) of the issuance by any securities or other governmental authority (including, without limitation, the Commission Commission) of any jurisdiction of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation of any proceedings for that purpose or the threat (known by the Company) thereof; , and (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company (which receipt is known to the Company) or any representative or attorney of the Company of any notification with respect other communication from the securities or other governmental authority (including, without limitation, the Commission) of any jurisdiction relating to any suspension of the qualification of Registration Statement, any Preliminary Prospectus or the Shares for offer and sale Prospectus in any jurisdictionconnection with the offering contemplated hereby. If at any time any securities or other governmental authority (including, without limitation, the Commission Commission) of any jurisdiction shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (dc) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplementedamended, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview the Placement Agent and, subject to Section 4(b4(a) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, Placement Agent without charge, such number of copies thereof as the Underwriters Placement Agent may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersPlacement Agent. (ed) The Company will furnish to the Underwriters Placement Agent and Underwriter Counselits counsel, upon request, without charge: , (i) one conformed signed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, registration statement described in Section 3(a) hereof and all exhibits thereto, thereto (other than exhibits incorporated by reference from XXXXX) and (ii) so long as a prospectus Prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of each Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Underwriters Placement Agent may reasonably request. (fe) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (hf) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Placement Agent and Underwriter Counsel its counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Placement Agent may reasonably request, if any; 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 or taxation in any jurisdiction where it is not now so subject. (g) 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, a consolidated 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). (h) The Company will not at any time, directly or indirectly, take any action prohibited by Regulation M of the Exchange Act in connection with the distribution of the Shares contemplated hereby. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Placement Agency Agreement (Dendreon Corp)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followseach Underwriter: (a) The Company shall furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under (or otherwise obtaining exemptions from the application of) the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Shares; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares) where it is not presently qualified.. (b) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement has become effective, and if Rule 430A is used or to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file the Prospectus (properly completed if Rule 430A has been used), subject use its reasonable best efforts to the prior approval of Grandview, pursuant cause such post-effective amendment to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise the Representative promptly and, if requested by the Representative, will confirm such filing to Grandview promptly following advice in writing, when such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any post-effective amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faithhas become effective. (c) The Company will notify shall prepare the Prospectus in a form approved by the Underwriters promptlyand file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 5:30 p.m. (New York City time), on February 4, 2021 or on such other day as the parties may mutually agree and willto furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 5:30 p.m. New York City time) on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree to the Underwriters copies of the Prospectus (or of the Prospectus as amended or supplemented if requestedthe Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T of the Securities Act. (d) The Company shall advise the Representative promptly and (if requested by the Representative) to confirm such notification advice in writing: (i) , when any post-effective amendment to the Registration Statement becomes effective; effective under the Securities Act. (iie) The Company shall furnish a copy of each proposed Issuer Free Writing Prospectus, if any, to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent will not be unreasonably withheld or delayed) prior to referring to, using or filing with the Commission any Issuer Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto. (f) The Company shall comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable. (g) The Company shall advise the Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by by, the Commission for any amendments to the Registration Statement or any amendment or supplements to the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information; information with respect thereto, (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration StatementStatement or of any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and offering or sale in any jurisdiction. If at , or of the initiation or threatening of any time proceedings for any of such purposes and, if the Commission shall or any other government agency or authority should issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebysuch order, the Company will to make every reasonable effort to obtain the withdrawal lifting or removal of any such order at as soon as possible, (iii) any examination pursuant to Section 8(e) of the earliest possible moment. If the Company has omitted any information from Securities Act concerning the Registration Statement, pursuant or (iv) if the Company becomes subject to Rule 430A, it will use its best efforts to comply a proceeding under Section 8A of the Securities Act in connection with the provisions public offering of Shares contemplated herein, and make all requisite filings with shall advise the Commission pursuant to said Rule 430A and to notify the Underwriters Representative promptly of all such filings. (d) Ifany proposal to amend or supplement the Registration Statement, at the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, during the time when a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, to file no such amendment or supplement to which the Representative shall reasonably object in writing. (h) To the extent not available on XXXXX, the Company becomes aware shall furnish to the Underwriters for a period of two years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of the Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission, FINRA or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Company and the Subsidiaries; provided, however, that the requirements of this Section shall be satisfied to the extent that such reports, statements, communications, financial statements or other documents are available on XXXXX. (i) The Company shall advise the Underwriters promptly of the occurrence of any event as or development known to the Company within the time during which a result of which Prospectus relating to the Prospectus, as then amended Shares (or supplemented, wouldin lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act which, in the reasonable judgment of counsel to the Company or Underwriter Counselin the reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Registration Statement, the Prospectus or the Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include any an untrue statement of a material fact or omit to state a material fact necessary in order required to make the statements therein, in the light of the circumstances under which they were made, not misleading, be stated therein or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement Disclosure Package to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview any law and, subject during such time, to Section 4(b) hereof, will promptly prepare and file furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission, Commission and thereafter promptly furnish at the Company’s expense, an amendment own expense to the Registration Statement or Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment the Disclosure Package as so amended or supplement thereto by supplemented will not, in the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy light of the Registration Statement as originally filed with circumstances when it (or in lieu thereof the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (iinotice referred to in Rule 173(a) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act) is so delivered, as many copies be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings information contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or so that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with Prospectus or the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and Disclosure Package will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing law. (j) The Company shall file promptly with the Commission where requiredany amendment or supplement to the Registration Statement, legending and record keeping. The Company will retain in accordance with any Preliminary Prospectus, the Rules and Regulations all Permitted Prospectus or any Issuer Free Writing Prospectuses not Prospectus that may, in the judgment of the Company or the Representative, be required to be filed pursuant to by the Rules and RegulationsSecurities Act or requested by the Commission. (hk) Prior The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation and filing of the Registration Statement, the Preliminary Prospectus and the Prospectus, any Issuer Free Writing Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Prospectus, Issuer Free Writing Prospectus and the Registration Statement and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares to the InvestorsUnderwriters; (iv) the printing (or reproduction) and delivery of this Agreement, the Company will cooperate with Grandview any blue sky memorandum and Underwriter Counsel all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) any expenses and fees for the cost of ratings agencies; (vi) any registration or qualification of the Shares for offer and sale under the state securities or Blue Sky blue sky laws of the several states (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering registration and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, qualification and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements blue sky memorandum); (vii) any filings required to be made with FINRA (including filing fees and the financial exhibits, if any, reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses of the Company’s officers in connection with presentations to prospective purchasers of the Shares; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) the costs and expenses of causing the Shares to be included eligible for clearance and settlement through DTC; (xi) reasonable and documented out-of-pocket, accountable, bona fide expenses incurred by the Underwriters in connection with its services under this Agreement, including any fees and disbursements of the Underwriters’ legal counsel; provided that the Company shall not be required to reimburse the fees and disbursements of such legal counsel in excess of $85,000; provided further that the Company shall not be required to reimburse any fees and expenses in excess of $150,000 in the Registration Statement aggregate; (xii) a structuring fee of $562,500 to be paid in cash to the Representative on the Closing Date, and, in the event the option to purchase Option Shares is exercised by the Underwriters in full, an additional structuring fee of $84,375 to be paid in cash to the Representative on the Option Closing Date; and continuing (xiii) all other costs and expenses incident to retain such accountants, or comparable accountants, for a period the performance by the Company of at least three (3) years after the Closingits obligations hereunder. (l) The Prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, during the time when a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, is required to be delivered under the Securities Act, the Company shall retain furnish a transfer agent copy thereof to the Representative and counsel for the Company’s Common Stock Underwriters and continue obtain the consent of the Representative (which consent shall not be unreasonably withheld or delayed) to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The During the period referred to in paragraph (j) above, the Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, file all such documents in the manner and continue to retain such firm, or a comparable firm, for a period of two (2) years after within the Closingtime periods required by the Exchange Act. (n) The Company shall register apply the net proceeds of the sale of the Shares in accordance with its statements under the Corporation Records Service published by Standard & Poor’s Corporation caption “Use of Proceeds” in the Registration Statement, the Prospectus and covenant to maintain such registration for a period of three (3) years from the ClosingDisclosure Package. (o) The Company shall make generally available to its security holders and to deliver to the Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act) covering a period of 12 months beginning after the effective date of the Registration Statement. (p) For a period of 60 days after the date of the Prospectus, the Company will not at (i) offer, pledge, sell, contract to sell, sell any timeoption or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, take or file with the Commission a registration statement under the Securities Act relating to, any action intendedshares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or which might reasonably be expectedpublicly disclose the intention to make any offer, to cause sale, pledge, disposition or result infiling, or which will constitute(ii) enter into any swap or other agreement that transfers, stabilization in whole or in part, any of the price economic consequences of ownership of the Common Stock or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Underwriter, other than (1) the Shares to facilitate the sale or resale be sold hereunder, (2) any shares of any Common Stock of the Shares. (p) The Company shallawarded, issued upon the reasonable request exercise of options or purchase rights, issued upon vesting of equity awards and/or settlement of other awards granted under the Company’s equity incentive plans, (3) the grant of stock options, restricted stock awards, restrictive stock units or any other awards under the Company’s equity incentive plans, (4) the filing by the Company of registration statements on Form S-8 with respect to benefit plans described in the Registration Statement, the Disclosure Package and the Prospectus, (5) the issuance of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding as of the Underwritersdate hereof and (6) the filing of a registration statement by the Company, deliver written affirmation of or any certificate delivered amendments or supplements thereto, in accordance with its obligations under the Registration Rights Agreement to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Datewhich it is a party, dated December 12, 2020. (q) The Company shall supply Grandview and its counselwill not take, at directly or indirectly, without giving effect to activities by the Company’s costsUnderwriter, with a reasonable number of bound volumes as to which the Company makes no representation, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the public offering materials within a reasonable time after price of the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by GrandviewCommon Stock. (r) Upon The Company is not and, after giving effect to the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders offering and sale of the CompanyShares, (ii) shares issued will not be an “investment company” as such terms are defined in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Investment Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeAct.

Appears in 1 contract

Samples: Underwriting Agreement (Quantum Corp /De/)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsInitial Purchasers that: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any make no further amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of Offering Memorandum except as permitted herein; and if at any time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: earlier of (i) when any post-effective amendment to the Registration Statement becomes effective; completion of the distribution of the Notes by the Initial Purchasers or (ii) of any request by 120 days after the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of Closing Date any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event have occurred as a result of which the ProspectusOffering Memorandum, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company Initial Purchasers or Underwriter Counselthe Company, include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, each Initial Purchaser or if for any the Company, as the case may be, will promptly notify the other reason it is necessary, in and the reasonable judgment of counsel Company will promptly prepare and deliver to the Initial Purchasers an amendment or supplement that will correct such untrue statement or omission. (b) The Company or Underwriter Counselshall advise the Initial Purchasers promptly and, at if requested, will confirm such advice in writing, (i) of any time proposal to amend or supplement the Prospectus or Offering Memorandum and will afford the Registration Statement Initial Purchasers a reasonable opportunity to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an comment on any such proposed amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits theretosupplement, (ii) so long as a prospectus relating of receipt by the Company of any notification with respect to the Shares is required to be delivered suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose and (iii) of any downgrading in the rating accorded the Notes by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act, as many copies of the Prospectus an "NRSRO"), or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares public announcement that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.organization

Appears in 1 contract

Samples: Purchase Agreement (Plainwell Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou that: (a) The It will, if the Registration Statement has not heretofore become effective under the Act, and, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, in each case as soon as practicable after the execution and delivery of this Agreement and will use (b) It will advise you promptly and, if requested by you, confirm such advice in writing, (i) if and when the Prospectus is sent for filing pursuant to Rule 424 under the Act (including any term sheet within the meaning of Rule 434 under the Act), when the Registration Statement has become effective, and if when any Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the 462 Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof is filed and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptlybecomes effective, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement it becomes effective; , (ii) of the receipt of any comment that relates to the Registration Statement from the Commission or any other regulatory authority or any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose such purposes by the Commission or the threat thereof; any state securities commission or regulatory authority, (iv) when any amendment to the Registration Statement becomes effective, (v) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (vi) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(e) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or Prospectus in order to make the statements therein not misleading or that makes any statement of a material fact made in the Prospectus (as amended or supplemented from time to time) untrue or which requires the making of any additions to or changes in the Prospectus (as amended or supplemented from time to time) in order to make the statements therein, in light of the circumstances in under which they are were made, not misleading; and (v) of receipt by . The Company will use its reasonable best efforts to prevent the Company issuance of any notification with respect to any suspension of stop order or order suspending the qualification or exemption of the Shares for offer and sale in under any jurisdiction. If Federal or state securities or Blue Sky laws, and, if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment state securities commission or supplement thereto by other regulatory authority shall issue an order suspending the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus qualification or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale exemption of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the any state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably requestlaws, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Twinlab Corp)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish you five signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits but including documents incorporated therein by reference, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; PROVIDED, HOWEVER, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its shareholders as soon as practicable an earnings statement covering the twelve-month period ending October 31, except for 2000 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as available copies of all reports or other communications furnished to the sale record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that Inc., (vi) all fees and expenses in no event shall connection with the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it hereunder for which provision is not now so qualified or to take any action which would subject it to general service of process otherwise made in any jurisdiction where it is not now so subject. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersthis Section. (j) The Company will To use its best efforts to ensure that list for quotation the Shares are listed on the NASDAQ Capital Nasdaq National Market at and to maintain the time listing of the Initial Closing, and seeking and using its best efforts to maintain such listing Shares on the Nasdaq National Market for a period of at least three (3) years after the Closingdate of this Agreement. (k) The Company shall retain a firm of independent certificate public accountants, acceptable To use its best efforts to Grandview, which will have the responsibility for the preparation of the financial statements do and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement and continuing Company prior to retain such accountantsthe Closing Date or any Option Closing Date, or comparable accountants, for a period of at least three (3) years after as the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holderscase may be, and continue to retain such firm, or a comparable firm, for a period of two (2) years after satisfy all conditions precedent to the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Advanced Digital Information Corp)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as followsthat: (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when the Registration Statement has become effective, effective and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement it becomes effective; , and of the filing of any final prospectus or supplement or amendment to the Prospectus, (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or Prospectus or any amendment or supplements to the Preliminary Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iv) within the period of becoming aware time referred to in paragraph (f) below, of the occurrence happening of any event that in the judgment of the Company which makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of therein not misleading or the circumstances in which they are made, not misleading; and (v) of receipt by necessity to amend or supplement the Company of Prospectus to comply with 16 the Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted elects to rely on Rule 434 of the Act, the Company will prepare a Term Sheet that complies with the requirements of Rule 434 of the Act and will provide the Representatives with copies of the form of Rule 434 Prospectus in such numbers as the Representatives may reasonably request and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the Act in accordance with Rule 424(b) of the Act by the close of business in Chicago on the business day immediately succeeding the date hereof. If the Company elects not to rely on Rule 434, the Company will provide the Representatives with copies of the form of Prospectus in such numbers as the Representatives may reasonably request and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the Act, by the close of business in Chicago on the business day immediately succeeding the date hereof. (b) If, at the time that the Registration Statement becomes effective, any information from shall have been omitted therefrom in reliance upon Rule 430A under the Registration StatementAct, pursuant to then promptly following the execution of the Pricing Agreement, the Company will prepare and file with the Commission, in accordance with Rule 430A and Rule 424(b) under the Act, copies of an amended Prospectus, or, if required by Rule 430A, it will use a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted. (c) Neither the Company nor any of its best efforts subsidiaries will, prior to comply with the provisions earlier of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify Option Closing Date or termination or expiration of the Underwriters promptly related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of all such filingsbusiness, except as contemplated in the Prospectus. (d) IfThe Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Representatives shall not previously have been advised or to which the Representatives shall promptly after being so advised reasonably object in writing. (e) Prior to the effective date of the Registration Statement, at any the Company has delivered or will deliver to each of the Underwriters, without charge, copies of each form of Preliminary Prospectus in such quantities as they have reasonably requested or may hereafter reasonably request. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the effective date of the Registration Statement, of each Preliminary Prospectus so furnished by the Company. (f) On the effective date of the Registration Statement and thereafter from time when to time during such period as in the opinion of counsel for the Underwriters a Prospectus prospectus relating to the Shares is required by law to be delivered under in connection with 17 offers or sales of the Securities ActShares by an Underwriter or a dealer, the Company becomes aware will deliver to each Underwriter and dealer, without charge, as many copies of the occurrence Registration Statement, the Prospectus and each Preliminary Prospectus and the Incorporated Documents (and of any amendment or supplement to such documents) as they may reasonably request. During such period, if any event as a result of occurs which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of the Company, or in the opinion of counsel for the Underwriters, should be set forth in the Prospectus in order to ensure that no part of the Company or Underwriter Counsel, include any Prospectus includes an untrue statement of a material fact or omit omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeat the time the Prospectus is delivered to a purchaser, not misleading, the Company will forthwith prepare, submit to the Representatives, file with the Commission and deliver, without charge to the several Underwriters and dealers (whose names and addresses will be furnished by the Representatives to the Company) to whom shares have been sold by the Underwriters or to other dealers any amendments or supplements to the Registration StatementProspectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably requeststandards set forth in this sentence. The Company consents to the use of such Prospectus (and of any amendments or supplements thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions described in the preliminary Blue Sky memorandum in which the Shares are lawfully offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus or is required by law to be delivered in connection therewith. In case any Underwriter is required to deliver a Prospectus (and any amendment or supplement thereto by thereto) more than nine months after the Underwriters. (e) The Company will furnish first date upon which the Shares are offered to the Underwriters public, the Company will, upon request, but at the expense of such Underwriter, promptly prepare and furnish such Underwriter Counsel, without charge: (iwith reasonable quantities of a Prospectus complying with Section 10(a)(3) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Representatives and Underwriter Counsel counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Representatives may designate, will continue such registrations or qualifications in effect so long as reasonably request, if anyrequired for the distribution of the Shares and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, provided that in no event shall the Company be obligated (i) to qualify to do business in any jurisdiction where it is not now so qualified qualified, (ii) to file any general consent to service of process, or to (iii) take any action which that would subject it to general service of process income taxation in any jurisdiction where it is not now so subjectqualified. (h) For a period of five years after the date of the Pricing Agreement: (i) the Company will furnish to the Representatives (A) as soon as available, a copy of each report of the Company of general interest mailed to any class of its security holders (B) copies of all annual reports and current (ii) if at any time during such five year period, the Company shall cease filing with the Commission the annual reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (i) above, the Company will forward to its stockholders generally and the Representatives and upon request to each of the other Underwriters (A) as soon as practicable after the end of each fiscal year, copies of a balance sheet and statements of income and retained earnings of the Company as of the end of and for such fiscal year, certified by independent public accountants, and (B) as soon as practicable after the end of each quarterly fiscal period, except for the last quarterly fiscal period in each fiscal year, a summary statement (which need not be certified) of income and retained earnings of the Company for such period, which shall also be made publicly available; and (iii) the Company will furnish to the Representatives and to the NASD, and by issuance of a press release, on the date of declaration, notice of all dividends, including the amount and medium of payment, the record date (which shall be not less than ten days subsequent to the declaration date) and the payment date (which shall be not less than ten days subsequent to the record date). (i) The Company will apply the net proceeds from the offering and sale make generally available to its security holders an earnings statement of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of GrandviewCompany, which shall need not be unreasonably withheldaudited, conditioned or delayed, no proceeds covering a twelve-month period commencing after the effective date of the Offering will be used to pay outstanding loans from officersRegistration Statement and ending not later than 15 months thereafter, directors or stockholdersas soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including Rule 158). (j) The Company will use its best efforts If this Agreement shall be terminated pursuant to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. provisions hereof (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters otherwise than pursuant to Section 7 prior 9 hereof or by notice given by the Representatives of termination of this Agreement pursuant to Section 10 hereof), or if this Agreement shall be terminated by the several Underwriters because of any Closing Date following failure or refusal on the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes part of the public offering materials within a reasonable time after Company to comply with the Closing, as well as a reasonable number terms or fulfill any of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingconditions of this Agreement, the Company will grant Grandview agrees to reimburse the right several Underwriters for all out-of-pocket expenses (including reasonable fees and expenses of first refusal to co-manage counsel for the Underwriters) reasonably incurred by them in connection herewith but without any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) further obligation of the Company for lost profits or any subsidiary or successor of the Company during the one year period following the Closing Dateotherwise. If Grandview accepts such right of first refusalthis Agreement is terminated pursuant to Section 9 or Section 10 hereof, Grandview the several Underwriters shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for themselves bear any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeout-of-pocket expenses incurred by them.

Appears in 1 contract

Samples: Underwriting Agreement (Transtechnology Corp)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as followsthat: (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when the Registration Statement has become effective, effective and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement it becomes effective; , and of the filing of any final prospectus or supplement or amendment to the Prospectus, (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or Prospectus or any amendment or supplements to the Preliminary Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iv) within the period of becoming aware time referred to in paragraph (f) below, of the occurrence happening of any event that in the judgment of the Company which makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of therein not misleading or the circumstances in which they are made, not misleading; and (v) of receipt by necessity to amend or supplement the Company of Prospectus to comply with 16 the Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted elects to rely on Rule 434 of the Act, the Company will prepare a Term Sheet that complies with the requirements of Rule 434 of the Act and will provide the Representatives with copies of the form of Rule 434 Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the Act in accordance with Rule 424(b) of the Act by the close of business in Chicago on the business day immediately succeeding the date hereof. If the Company elects not to rely on Rule 434, the Company will provide you with copies of the form of Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the Act, by the close of business in Chicago on the business day immediately succeeding the date hereof. (b) If, at the time that the Registration Statement becomes effective, any information from shall have been omitted therefrom in reliance upon Rule 430A under the Registration StatementAct, pursuant to then promptly following the execution of the Pricing Agreement, the Company will prepare and file with the Commission, in accordance with Rule 430A and Rule 424(b) under the Act, copies of an amended Prospectus, or, if required by Rule 430A, it will use a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted. (c) Neither the Company nor any of its best efforts subsidiaries will, prior to comply with the provisions earlier of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify Option Closing Date or termination or expiration of the Underwriters promptly related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of all such filingsbusiness, except as contemplated in the Prospectus. (d) IfThe Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Representatives shall not previously have been advised or to which the Representatives shall promptly after being so advised reasonably object in writing. (e) Prior to the effective date of the Registration Statement, at any the Company has delivered or will deliver to each of the Underwriters, without charge, copies of each form of Preliminary Prospectus in such quantities as they have reasonably requested or may hereafter reasonably request. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the effective date of the Registration Statement, of each Preliminary Prospectus so furnished by the Company. (f) On the effective date of the Registration Statement and thereafter from time when to time during such period as in the opinion of counsel for the Underwriters a Prospectus prospectus relating to the Shares is required by law to be delivered under in connection with 17 offers or sales of the Securities ActShares by an Underwriter or a dealer, the Company becomes aware will deliver to each Underwriter and dealer, without charge, as many copies of the occurrence Registration Statement, the Prospectus and each Preliminary Prospectus and the Incorporated Documents (and of any amendment or supplement to such documents) as they may reasonably request. During such period, if any event as a result of occurs which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of the Company, or in the opinion of counsel for the Underwriters, should be set forth in the Prospectus in order to ensure that no part of the Company or Underwriter Counsel, include any Prospectus includes an untrue statement of a material fact or omit omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeat the time the Prospectus is delivered to a purchaser, not misleading, the Company will forthwith prepare, submit to the Representatives, file with the Commission and deliver, without charge to the several Underwriters and dealers (whose names and addresses will be furnished by the Representatives to the Company) to whom shares have been sold by the Underwriters or to other dealers any amendments or supplements to the Registration StatementProspectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably requeststandards set forth in this sentence. The Company consents to the use of such Prospectus (and of any amendments or supplements thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions described in the preliminary Blue Sky memorandum in which the Shares are lawfully offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus or is required by law to be delivered in connection therewith. In case any Underwriter is required to deliver a Prospectus (and any amendment or supplement thereto by thereto) more than nine months after the Underwriters. (e) The Company will furnish first date upon which the Shares are offered to the Underwriters public, the Company will, upon request, but at the expense of such Underwriter, promptly prepare and furnish such Underwriter Counsel, without charge: (iwith reasonable quantities of a Prospectus complying with Section 10(a)(3) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Representatives and Underwriter Counsel counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Representatives may designate, will continue such registrations or qualifications in effect so long as reasonably request, if anyrequired for the distribution of the Shares and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, provided that in no event shall the Company be obligated (i) to qualify to do business in any jurisdiction where it is not now so qualified qualified, (ii) to file any general consent to service of process, or to (iii) take any action which that would subject it to general service of process income taxation in any jurisdiction where it is not now so subjectqualified. (h) For a period of five years after the date of the Pricing Agreement: (i) the Company will furnish to the Representatives (A) as soon as available, a copy of each report of the Company of general interest mailed to any class of its security holders (B) copies of all annual reports and current (ii) if at any time during such five year period, the Company shall cease filing with the Commission the annual reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (i) above, the Company will forward to its stockholders generally and the Representatives and upon request to each of the other Underwriters (A) as soon as practicable after the end of each fiscal year, copies of a balance sheet and statements of income and retained earnings of the Company as of the end of and for such fiscal year, certified by independent public accountants, and (B) as soon as practicable after the end of each quarterly fiscal period, except for the last quarterly fiscal period in each fiscal year, a summary statement (which need not be certified) of income and retained earnings of the Company for such period, which shall also be made publicly available; and (iii) the Company will furnish to the Representatives and to the NASD, and by issuance of a press release, on the date of declaration, notice of all dividends, including the amount and medium of payment, the record date (which shall be not less than ten days subsequent to the declaration date) and the payment date (which shall be not less than ten days subsequent to the record date). (i) The Company will make generally available to its security holders an earnings statement of the Company, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including Rule 158). (j) If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than pursuant to Section 9 hereof or by notice given by the Representatives of termination of this Agreement pursuant to Section 10 hereof), or if this Agreement shall be terminated by the several Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the several Underwriters for all out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) reasonably incurred by them in connection herewith but without any further obligation of the Company for lost profits or otherwise. If this Agreement is terminated pursuant to Section 10 hereof, the several Underwriters shall themselves bear any such out-of-pocket expenses incurred by them. (k) Except as set forth in the Lockup Agreements, the Company will not sell, contract to sell or otherwise dispose of any Common Stock or rights to purchase Common Stock for a period of 90 days after the date of the Pricing Agreement without the prior written consent of the Representatives. The Company will also obtain similar agreements from each of its officers and directors. (l) The Company will apply the net proceeds from the offering and sale of the Offered Securities in shares to be sold by it under this Agreement and the manner Pricing Agreement for the purposes set forth in the Prospectus under the caption "Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders." (jm) The Company will use its best efforts efforts, subject to ensure that notice of issuance, to list the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the ClosingNew York Stock Exchange. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Transtechnology Corp)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as followsthat: (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when the Registration Statement has become effective and when any post- effective amendment to it becomes effective, and if Rule 430A is used or of the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment final prospectus or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; Prospectus, (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or Prospectus or any amendment or supplements to the Preliminary Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iv) within the period of becoming aware time referred to in paragraph (f) below, of the occurrence happening of any event that in the judgment of the Company which makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of therein not misleading or the circumstances in which they are made, not misleading; and (v) of receipt by necessity to amend or supplement the Company of Prospectus to comply with the Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted elects to rely on Rule 434 of the Act, the Company will prepare a Term Sheet that complies with the requirements of Rule 434 of the Act and will provide the Representatives with copies of the form of Rule 434 Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the Act in accordance with Rule 424(b) of the Act by the close of business in Chicago on the business day immediately succeeding the date hereof. If the Company elects not to rely on Rule 434, the Company will provide you with copies of the form of Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the Act, by the close of business in Chicago on the business day immediately succeeding the date hereof. (b) If, at the time that the Registration Statement becomes effective, any information from shall have been omitted therefrom in reliance upon Rule 430A under the Registration StatementAct, pursuant to then promptly following the execution of the Pricing Agreement, the Company will prepare and file with the Commission, in accordance with Rule 430A and Rule 424(b) under the Act, copies of an amended Prospectus, or, if required by Rule 430A, it will use a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted. (c) Neither the Company nor any of its best efforts subsidiaries will, prior to comply with the provisions earlier of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify Option Closing Date or termination or expiration of the Underwriters promptly related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of all such filingsbusiness, except as contemplated in the Prospectus. (d) IfThe Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Representatives shall not previously have been advised or to which the Representatives shall promptly after being so advised reasonably object in writing. (e) Prior to the effective date of the Registration Statement, at any the Company has delivered or will deliver to each of the Underwriters, without charge, copies of each form of Preliminary Prospectus in such quantities as they have reasonably requested or may hereafter reasonably request. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the effective date of the Registration Statement, of each Preliminary Prospectus so furnished by the Company. (f) On the effective date of the Registration Statement and thereafter from time when to time during such period as in the opinion of counsel for the Underwriters a Prospectus prospectus relating to the Shares is required by law to be delivered under in connection with offers or sales of the Securities ActShares by an Underwriter or a dealer, the Company becomes aware will deliver to each Underwriter and dealer, without charge, as many copies of the occurrence Registration Statement, the Prospectus and each Preliminary Prospectus and the Incorporated Documents (and of any amendment or supplement to such documents) as they may reasonably request. During such period, if any event as a result of occurs which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of the Company, or in the opinion of counsel for the Underwriters, should be set forth in the Prospectus in order to ensure that no part of the Company or Underwriter Counsel, include any Prospectus includes an untrue statement of a material fact or omit omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeat the time the Prospectus is delivered to a purchaser, not misleading, the Company will forthwith prepare, submit to the Representatives, file with the Commission and deliver, without charge to the several Underwriters and dealers (whose names and addresses will be furnished by the Representatives to the Company) to whom shares have been sold by the Underwriters or to other dealers any amendments or supplements to the Registration StatementProspectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably requeststandards set forth in this sentence. The Company consents to the use of such Prospectus (and of any amendments or supplements thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions described in the preliminary Blue Sky memorandum in which the Shares are lawfully offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus or is required by law to be delivered in connection therewith. In case any Underwriter is required to deliver a Prospectus (and any amendment or supplement thereto by thereto) more than nine months after the Underwriters. (e) The Company will furnish first date upon which the Shares are offered to the Underwriters public, the Company will, upon request, but at the expense of such Underwriter, promptly prepare and furnish such Underwriter Counsel, without charge: (iwith reasonable quantities of a Prospectus complying with Section 10(a)(3) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Representatives and Underwriter Counsel counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Representatives may designate, will continue such registrations or qualifications in effect so long as reasonably request, if anyrequired for the distribution of the Shares and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, provided that in no event shall the Company be obligated (i) to qualify to do business in any jurisdiction where it is not now so qualified qualified, (ii) to file any general consent to service of process, or to (iii) take any action which that would subject it to general service of process income taxation in any jurisdiction where it is not now so subjectqualified. (h) For a period of five years after the date of the Pricing Agreement: (i) the Company will furnish to the Representatives (A) as soon as available, a copy of each report of the Company of general interest mailed to any class of its security holders (B) copies of all annual reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K and any amendment thereto or such other similar forms as may be designated by the Commission and (C) from time to time, such other information concerning the Company as the Representatives may reasonably request; (ii) if at any time during such five year period, the Company shall cease filing with the Commission the annual reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (i) above, the Company will forward to its stockholders generally and the Representatives and upon request to each of the other Underwriters (A) as soon as practicable after the end of each fiscal year, copies of a balance sheet and statements of income and retained earnings of the Company as of the end of and for such fiscal year, certified by independent public accountants, and (B) as soon as practicable after the end of each quarterly fiscal period, except for the last quarterly fiscal period in each fiscal year, a summary statement (which need not be certified) of income and retained earnings of the Company for such period, which shall also be made publicly available; and (iii) the Company will furnish to the Representatives and to the NASD, and by issuance of a press release, on the date of declaration, notice of all dividends, including the amount and medium of payment, the record date (which shall be not less than ten days subsequent to the declaration date) and the payment date (which shall be not less than ten days subsequent to the record date). (i) The Company will apply the net proceeds from the offering and sale make generally available to its security holders an earnings statement of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of GrandviewCompany, which shall need not be unreasonably withheldaudited, conditioned or delayed, no proceeds covering a twelve-month period commencing after the effective date of the Offering will be used to pay outstanding loans from officersRegistration Statement and ending not later than 15 months thereafter, directors or stockholdersas soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including Rule 158). (j) The Company will use its best efforts If this Agreement shall be terminated pursuant to ensure that any of the Shares are listed provisions hereof (otherwise than by notice given by the Representatives' termination of this Agreement pursuant to Section 10 hereof), or if this Agreement shall be terminated by the several Underwriters because of any failure or refusal on the NASDAQ Capital Market at the time part of the Initial ClosingCompany to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the several Underwriters for all out-of-pocket expenses (including reasonable fees and seeking and using its best efforts expenses of counsel for the Underwriters) reasonably incurred by them in connection herewith but without any further obligation of the Company for lost profits or otherwise. If this Agreement is terminated pursuant to maintain Section 10 hereof, the several Underwriters shall themselves bear any such listing for a period of at least three (3) years after the Closingout-of-pocket expenses incurred by them. (k) The Company shall retain a firm will not sell, contract to sell or otherwise dispose of independent certificate public accountants, acceptable any Common Stock or rights to Grandview, which will have the responsibility for the preparation of the financial statements purchase Common Stock (other than in connection with any acquisition and the financial exhibits, if any, to be included granting of employee stock options in the Registration Statement and continuing to retain such accountants, or comparable accountants, ordinary course of business) for a period of at least three (3) years 120 days after the Closing. (l) The Company shall retain a transfer agent for date of the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period Pricing Agreement without the prior written consent of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) ABN AMRO Incorporated. The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization also obtain similar agreements from each of the price of the Shares to facilitate the sale or resale of any of the Sharesits executive officers and directors. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Acxiom Corp)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement has become effective, and if Rule 430A is used or to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file the Prospectus (properly completed if Rule 430A has been used), subject endeavor to the prior approval of Grandview, pursuant cause such post-effective amendment to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise the Underwriters promptly and, if requested by the Underwriters, will confirm such filing to Grandview promptly following advice in writing, when such filingpost-effective amendment has become effective. (b) The Company will notadvise the Underwriters promptly and, during if requested by the Underwriters, will confirm such period as advice in writing: of any request by the Prospectus would be required by law to be delivered in connection with sales Commission for amendment of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or a supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and within the period of time referred to in paragraph (e) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time within the time period referred to in paragraph (e) the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (c) The Company will furnish to the Company has omitted any information from Underwriters, without charge and upon the Underwriters' request, (i) such number of conformed copies of the Registration StatementStatement as originally filed and of each amendment thereto, pursuant to Rule 430Abut without exhibits, it 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 as the Underwriters promptly may reasonably request, (ii) such number of all such filingscopies of the Incorporated Documents, without exhibits, as the Underwriters may reasonably request, and (iii) one copy of the exhibits to the Incorporated Documents. (d) If, at The Company will not file any time when a Prospectus relating amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (e) below, file any document which upon filing, becomes an Incorporated Document, of which the Underwriters shall not previously have been advised or to which, after the Underwriters shall have received a copy of the document proposed to be filed, the Underwriters shall reasonably object. (e) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as the Underwriters may reasonably request. Subject to the provisions of subsection (f) below, the Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws or real estate syndication laws of the jurisdictions in the United States in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. If during such period of time any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel necessary to the Company supplement or Underwriter Counsel, at any time to amend or supplement the Prospectus (or to file under the Registration Statement Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the CommissionCommission an appropriate supplement or amendment thereto (or to such document), at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will expeditiously furnish to the Underwriters and Underwriter Counseldealers a reasonable number of copies thereof. In the event that the Company and the Underwriters agree that the Prospectus should be amended or supplemented, without charge: (i) one conformed copy of the Registration Statement as originally filed with Company, if requested by the Commission and each amendment theretoUnderwriters, including financial statements and schedules, and all exhibits thereto, (ii) so long as will promptly issue a prospectus relating to press release announcing or disclosing the Shares is required matters to be delivered under covered by the Securities Act, as many copies of the Prospectus or any proposed amendment or supplement thereto as the Underwriters may reasonably requestsupplement. (f) The Company will comply cooperate with all the undertakings contained in the Registration Statement. (g) The Company represents Underwriters and agrees that, except with counsel for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws or real estate syndication laws of such jurisdictions as Grandview the Underwriters may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (g) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, which shall satisfy the provisions of Section 11(a) of the Act. (h) The Company will furnish to its shareholders, as soon as practicable after the end of each respective fiscal year, an annual report (including financial statements audited by independent public accountants). (i) If this Agreement shall terminate or shall be terminated after execution by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement to be complied with or fulfilled by the Company, the Company agrees to reimburse the Underwriters for all reasonable out-of-pocket expenses (including fees and expenses of counsel) incurred by the Underwriters in connection with this Agreement. (j) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares substantially in accordance with the manner description set forth in the Prospectus under the caption "Use of Proceeds.” Without " in the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersProspectus. (jk) The Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise the Underwriters or the Underwriters' counsel of the time and manner of such filing. (l) Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares. (m) The Company will use its best efforts to ensure that list the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the ClosingNYSE. (n) The Subject to the determination by the Board of Directors of the Company shall register with to the Corporation Records Service published by Standard & Poor’s Corporation contrary, the Company will use its best efforts to meet the requirements to qualify as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the "Code") and covenant to maintain such registration cause the Partnership to be treated as a partnership for a period of three (3) years from the Closingfederal income tax purposes. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, Except as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingprovided in this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or grant Grandview any options or warrants to purchase Common Stock for a period of 30 days after the right date of first refusal to co-manage any public underwriting or private placement the Prospectus Supplement, without the prior written consent of debt or equity securities (excluding A.G. Edwards & Sons, Inc., except (i) sales for the issuance of Common Stock pursuant to employees under any compensation or stock option plan approved by the shareholders redemption of units of limited partnership interest in the Partnership ("Partnership Units") in accordance with the Third Amended and Restated Agreement of Limited Partnership of the CompanyPartnership, as amended and (ii) shares for options or Common Stock issued pursuant to stock option or stock purchase plans as described in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of Prospectus or the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeIncorporated Documents.

Appears in 1 contract

Samples: Underwriting Agreement (Equity Inns Inc)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The Company will use commercially reasonable efforts to cause the Registration Statement to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective, effective and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement thereto becomes effective; , (ii) if Rule 430A under the Act is employed, when the Prospectus or term sheet (as described in Rule 434(b) under the Act) has been timely filed pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission for any amendments or supplements to the Registration Statement Statement, any Prepricing Prospectus or any amendment or supplements to the Prospectus or for additional information; , (iiiiv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation (or threatened initiation) of any proceedings proceeding for that purpose such purposes, and (v) within the period of time referred to in Section 5(e) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware of the occurrence operations, or of any event that in comes to the judgment attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes in the Registration Statement or the Prospectus therein in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every use commercially reasonable effort efforts to obtain the withdrawal or lifting of any such order at the earliest possible momenttime. If the Company has omitted any information from elects to rely on Rule 434 under the Registration StatementAct, pursuant to the Company will provide the Underwriters with copies of the form of Rule 430A, it will use its best efforts to comply 434 Prospectus (including copies of a term sheet that complies with the provisions requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and make all requisite filings file with the Commission pursuant in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(c) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to said rely on Rule 430A and to notify 434 under the Act, the Company will provide the Underwriters promptly with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof. (b) The Company will furnish to you, without charge, such copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, as you may reasonably request and will also furnish to you, without charge, such filingsnumber of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request. (c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which you shall not previously have been advised (with a reasonable opportunity to review such amendment or supplement) or to which you have reasonably objected after being so advised and having been given a reasonable opportunity to review same. (d) IfPrior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company. (e) As soon after the execution and delivery of this Agreement as is reasonably practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer, and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time when a Prospectus relating prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of the prospectus delivery requirements with respect to the Shares under section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, supplement or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(b5(a) and 5(c) hereof, will promptly prepare and file with the CommissionCommission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver furnish to the Underwriterseach Underwriter and to each dealer who has previously requested Prospectuses, without charge, such a reasonable number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably requestthereof. (f) The Company will comply cooperate with all the undertakings contained in the Registration Statement. (g) The Company represents you and agrees that, except counsel for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided, 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 qualified, to subject itself to taxation as a result of doing business in any jurisdiction where it is not now so subject to taxation, to qualify as a dealer in securities in any jurisdiction or to take any action which would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. (g) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a period of at least twelve months commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as reasonably practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11 (a) of the Act and Rule 158 promulgated thereunder. (h) During the period ending five years from the date hereof, the Company will furnish to you and, upon your request, to each of the other underwriters (i) as soon as available, a copy of each report or proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or the Nasdaq National Market or any securities exchange, and (ii) from time to time such other information concerning the Company as you may reasonably request. (i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (other than as a result of a failure by the Representatives or any Underwriter to fulfill their or its obligations hereunder or pursuant to clauses (i)-(iii) of Section 11) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters but excluding wages and salaries paid by the Representatives) reasonably incurred by you in connection herewith. (j) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares to be sold by it hereunder in accordance with the manner description set forth in the Prospectus under the caption "Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing." (k) The If Rule 430A under the Act is employed, the Company shall retain a firm of independent certificate public accountants, acceptable will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Grandview, which will have Rule 424(b) under the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingAct. (l) The Company shall retain a transfer agent will not (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the Company’s sale of or otherwise dispose of or transfer any shares of Common Stock and continue or securities convertible into or exchangeable or exercisable for shares of Common Stock, whether now owned or acquired after the date of the Prospectus or with respect to retain such transfer agentwhich the power of disposition is acquired after the date of the Prospectus, or a comparable firmfile any registration statement under the Act with respect to any of the foregoing; or (ii) enter into any swap or other agreement or any other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of shares of Common Stock whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise except to the Underwriters pursuant to this Agreement for a period of three (3) years after 180 days from the Closingdate of the Prospectus without the prior written consent of Xxxxxxx Xxxxx & Associates, Inc.; provided, however, that the Company may issue shares of Common Stock or securities convertible into or exercisable or exchangeable for shares of Common Stock pursuant to the Maverick Tube Corporation Amended and Restated 1990 Stock Option Plan, the Maverick Tube Corporation 1994 Stock Option Plan, the Maverick Tube Corporation Director Stock Option Plan dated February 15, 1995 and pursuant to other employee benefit and compensation arrangements currently in effect. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any timenot, directly or indirectly, take any action intendedwhich would constitute, or any action designed or which might reasonably be expected, expected to cause or result in, in or which will constitute, under Act or otherwise, stabilization or manipulation of the price of any security of the Shares Company to facilitate the sale or resale of any the Shares. (n) The Company will maintain a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of the SharesNasdaq National Market or any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for its Common Stock. (o) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and each of the subsidiaries of the Company identified on Schedule II attached hereto ("Subsidiary" or, collectively, the "Subsidiaries") for any period subsequent to the periods covered by the financial statements appearing in the Prospectus. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation will comply with all provisions of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale undertakings contained in any such noticethe Registration Statement.

Appears in 1 contract

Samples: Underwriting Agreement (Maverick Tube Corporation)

Agreements of the Company. The Company covenants and agrees with the several U.S. Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectuses (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (c) The Company will furnish to you, without charge (i) five signed copies of the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings registration statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the registration statement, (ii) such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may reasonably request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may reasonably request, and (iv) five copies of the exhibits to notify the Underwriters promptly of all such filingsIncorporated Documents. (d) If, at The Company will not file any time when a Prospectus relating amendment to the Registration Statement or make any amendment or supplement to the Prospectuses or, prior to the end of the period of time referred to in the first sentence in paragraph (f) below, file any document which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object. (e) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have reasonably requested, copies of each form of the U.S. Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by dealers, prior to the date of the U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as a prospectus is required by the Act to be delivered in connection with sales by any U.S Underwriter or dealer, the Company will deliver to each U.S. Underwriter and each dealer, without charge, as many copies of the U.S. Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Company consents to the use of the U.S. Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the opinion of counsel for the U.S. Underwriters is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, U.S. Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make supplement or amend the statements thereinU.S. Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement order to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the CommissionCommission an appropriate supplement or amendment thereto (or to such document), at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the U.S. Underwriters and Underwriter Counsel, without charge: (i) one conformed copy dealers a reasonable number of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementthereof. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the U.S. Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several U.S. Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section ll(a) of the Act. (i) During the period of three years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may reasonably request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the U.S. Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including fees and expenses of counsel for the U.S. Underwriters) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Underwritten Shares substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectuses. (l) The If Rule 430A of the Act is employed, the Company shall retain a transfer agent for will timely file the Company’s Common Stock Prospectuses pursuant to Rule 424(b) under the Act and continue to retain will advise you of the time and manner of such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The Except as provided in this Agreement, the Company shall engage a financial public relations firm reasonably acceptable will not sell, contract to their relations with their security holders, and continue to retain such firmsell or otherwise dispose of any TDS Telecom Group Common Stock or any securities convertible into or exercisable or exchangeable for TDS Telecom Group Common Stock, or a comparable firmgrant any options or warrants to purchase TDS Telecom Group Common Stock, except as permitted as described in the Prospectuses under the heading "Underwriting," for a period of two (2) years 180 days after the Closingdate of the U.S. Prospectus, without the prior written consent of the Representatives. (n) The Company shall register with has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its current executive officers and directors and by the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period trustee of three (3) years from the ClosingTDS Voting Trust. (o) The Except as stated in this Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares any class of Common Stock to facilitate the sale or resale of any of the Shares. (p) The Company shallwill use its best efforts to have the shares of Common Stock which it agrees to sell under this Agreement listed, upon subject to notice of issuance, on the reasonable request of American Stock Exchange on or before the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Telephone & Data Systems Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters Placement Agents as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandviewthe Placement Agents, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview the Placement Agents promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview the Placement Agents within a reasonable period of time prior to the filing thereof and Grandview the Placement Agents shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters Placement Agents promptly, and will, if requested, confirm such notification in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 5(b); (ii2) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional informationinformation related to the offering of the Shares or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, but only during the period mentioned in Section 5(b); (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof, but only during the period mentioned in Section 5(b); (iv4) of becoming aware of the occurrence of any event during the period mentioned in Section 5(b) that in the reasonable judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters Placement Agents promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agents, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview the Placement Agents and, subject to Section 4(b5(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the UnderwritersPlacement Agents, without charge, such number of copies thereof as the Underwriters Placement Agents may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersPlacement Agents. (e) The Company will furnish furnish, upon request, to the Underwriters Placement Agents and Underwriter Counselits counsel, without charge: charge (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Underwriters Placement Agents may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Placement Agents and Underwriter Counsel their counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Placement Agents may reasonably request, if any; 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. (ih) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (ji) The Company will use its best efforts to ensure that the Shares are listed or quoted on the NASDAQ Capital Market at the time of the Initial Closing, Closing and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closinglisting. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (oj) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Securities Purchase Agreement (Pure Cycle Corp)

Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows: (a) The Registration Statement has become effectiveCompany will prepare a supplement to the Prospectus setting forth the amount of the Notes covered thereby and the terms thereof not otherwise specified in the Prospectus, the price at which the Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and reallowances, if any, and if Rule 430A is used or such other information as the filing Underwriters and the Company deem appropriate in connection with the offering of the Prospectus is otherwise required under Rule 424(b)Notes, and the Company will timely file the Prospectus (properly completed if Rule 430A has been used), subject such supplement to the prior approval of Grandview, prospectus with the SEC pursuant to Rule 424(b) within under the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Act, but the Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, not file any amendment or supplement amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus Prospectus, unless a copy thereof it shall first have been submitted to Grandview within a reasonable period delivered copies of time prior such amendments or supplements to the filing thereof and Grandview Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement or if the Underwriters shall not have reasonably objected thereto in good faith. (c) The promptly after receipt thereof; the Company will notify immediately advise the Underwriters promptly, and will, if requested, confirm such notification in writing: or the Underwriters' counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement becomes effective; has become or will become effective and (ii) of any request by order or communication suspending or preventing, or threatening to suspend or prevent, the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) offer and sale of the issuance by the Commission of any stop order preventing Notes or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for or examinations that purpose may lead to such an order or the threat thereof; (iv) of becoming aware communication, whether by or of the occurrence of SEC or any event that in the judgment of authority administering any state securities or Blue Sky law, as soon as the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements thereinis advised thereof, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with prevent the provisions issuance of and make all requisite filings with the Commission pursuant to said Rule 430A any such order or communication and to notify the Underwriters promptly of all such filingsobtain as soon as possible its lifting, if issued. (db) If, at any time when a the Prospectus relating to the Shares Notes is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company promptly will promptly notify Grandview and, subject to Section 4(b) hereof, the Representative of such event and will promptly prepare and file with the CommissionSEC, at the Company’s its own expense, an amendment to the Registration Statement or an amendment or supplement to the such Prospectus that corrects will correct such statement or omission or effects an amendment that will effect such compliance compliance. Neither the Representative's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof. (c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes. (d) The Company will deliver furnish to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with (including all documents and exhibits thereto or incorporated by reference therein), the Commission and each amendment thereto, including financial statements and schedulesProspectus, and all exhibits thereto, (ii) so long as a prospectus amendments and supplements to such documents relating to the Shares is required to be delivered under the Securities ActNotes, as many copies of the Prospectus or any amendment or supplement thereto in each case in such quantities as the Underwriters may reasonably request. (e) The Company will cooperate with the Underwriters in listing the Class A Notes on the Irish Stock Exchange. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed cooperate with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, Underwriters and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel their counsel in connection with the registration qualification of, or qualification procurement of exemptions with respect to, the Shares Notes for offer offering and sale by the Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriters may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; provided, 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 suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (ig) The Company will apply consents to the net proceeds from use, in accordance with the offering securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and sale by dealers, of the Offered Securities in Prospectus furnished by the manner set forth in Company. (h) To the Prospectus under extent, if any, that the caption “Use rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of Proceedsdocuments or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds (i) So long as any of the Offering Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be used filed with the SEC pursuant to pay outstanding loans the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from officers, directors or stockholderstime to time. (j) The Company will use its best efforts If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to ensure that any provisions hereof (otherwise than by notice given by the Shares are listed Representative terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Representative because of any failure or refusal on the NASDAQ Capital Market at the time part of the Initial ClosingCompany to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and seeking and using its best efforts to maintain such listing expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for a period loss of at least three (3) years after the Closingprofits or otherwise. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have net proceeds from the responsibility for the preparation sale of the financial statements and Notes hereunder will be applied substantially in accordance with the financial exhibits, if any, to be included description set forth in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectus. (l) The Except as stated in this Agreement and in the Prospectus, the Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agenthas not taken, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Notes to facilitate the sale or resale of any the Notes. (m) For a period from the date of this Agreement until the retirement of the SharesNotes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants' reports furnished to the Indenture Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Indenture Trustee or the Company. (n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the Trust Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Trust Student Loans to show the absolute ownership by the Indenture Trustee, as eligible lender of, and the interest of the Company in, the initial Trust Student Loans, and the Company shall not take, or shall not permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Trust Student Loans, other than as permitted by the Basic Documents (o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company or any entity affiliated, directly or indirectly, with the Company. (p) The Company shallIf, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the reasonable request of the Underwriters1933 Act, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date then, immediately following the Initial Closing Dateexecution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted. (q) The Company shall supply Grandview and its counselAs soon as practicable, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time but not later than 16 months after the Closing, as well as a reasonable number date of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingthis Agreement, the Company will grant Grandview make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the right later of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders effective date of the CompanyRegistration Statement, (ii) shares issued in payment the effective date of the consideration for an acquisition most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) conventional banking arrangements and commercial debt financingthe date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeAct.

Appears in 1 contract

Samples: Underwriting Agreement (SLC Student Loan Trust 2005-2)

Agreements of the Company. The Company covenants and agrees with the Underwriters you as follows:: ------------------------- (a) The Registration Statement has become effective, and if Rule 430A is used or the filing In respect of the Prospectus is otherwise required under Rule 424(b)offering of Shares, the Company will file prepare a Prospectus Supplement setting forth the number of Shares covered thereby and their terms not otherwise specified in the Prospectus (properly completed pursuant to which the Shares are being issued, the name of the Underwriter participating in the offering and the number of Shares which the Underwriter has agreed to purchase, the price at which the Shares are to be purchased by the Underwriter from the Company, the initial public offering price, the selling concession and reallowance, if Rule 430A has been used)any, subject and such other information as the Underwriter and the Company deem appropriate in connection with the offering of the Shares. The Company will furnish to the prior approval Underwriter and to such dealers as you shall specify as many copies of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filingProspectus as the Underwriter shall reasonably request for the purposes contemplated by the Act or the Exchange Act. (b) The Company will not, during such period as At any time when the Prospectus would be is required by law to be delivered under the Act or the Exchange Act in connection with sales of Shares, the Shares Company will advise you promptly and, if requested by an underwriter you, confirm such advice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus or dealer in connection with other supplement or amendment to the offering Prospectus to be filed pursuant to the Act, (iii) the receipt of any comments from the Commission relating to the Registration Statement, any preliminary prospectus, the Prospectus or any of the transactions contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (civ) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any post-effective amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, and (vi) the threat thereof; (iv) of becoming aware of the occurrence happening of any event that in the judgment as a result of the Company makes any statement made in the Registration Statement or which the Prospectus as then amended or supplemented would include an untrue in statement of a material fact or omit to state any material respect or that requires the making of any changes in the Registration Statement or the Prospectus fact necessary in order to make the statements therein, in the light of the circumstances in which they are madewhen the Prospectus is delivered to a purchaser, not misleading; and (v) of receipt by . The Company will make every reasonable effort to prevent the Company issuance of any notification with respect to any suspension of the qualification of the Shares for offer stop order and sale in any jurisdiction. If if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal or lifting of any such order at the earliest possible moment. If time. (c) The Company will furnish to you without charge, one signed copy of the Company has omitted Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and furnish to you such number of conformed copies of the Registration Statement as so filed and of each amendment to it as you may reasonably request. (d) At any information from time when the Prospectus is required to be delivered under the Act or the Exchange Act in connection with sales of Shares, not to file any amendment to the Registration Statement or any Rule 462(b) Registration Statement or to make any amendment or supplement to the Prospectus or any Term Sheet, if applicable, of which you shall not previously have been advised or to which you or counsel for the Underwriter shall reasonably object; and to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement, pursuant Rule 462(b) Registration Statement, Term Sheet, or amendment or supplement to Rule 430Athe Prospectus which, it will in the opinion of counsel for the Underwriter, may be necessary in connection with the distribution of the Shares by you, and to use its best efforts to comply cause the same to become promptly effective. The Prospectus and any amendments or supplements thereto furnished to the Underwriter will be identical to the electronically transmitted copies thereof filed with the provisions of and make all requisite filings with the Commission commission pursuant to said Rule 430A and XXXXX, except to notify the Underwriters promptly of all such filings.extent permitted by Regulation S-T. (de) If, at any time when a the Prospectus relating to the Shares is required to be delivered under the Securities ActAct or the Exchange Act in connection with sales of Shares, the Company becomes aware of the occurrence of any event shall occur as a result of which which, in the opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with any law, the Company will forthwith prepare and file with the Commission an appropriate amendment or supplement to the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriter) so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting when it is so delivered, not misleading, or so that the Registration StatementProspectus will comply with any law, as then amended or supplemented, would, in the reasonable judgment of counsel and to furnish to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit and to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without chargedealers as you shall specify, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealers may reasonably request. (f) The Company will comply with all the undertakings contained use its best efforts, in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed cooperation with the Commission. Any such free writing prospectus consented Underwriter, to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated qualify or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of register the Shares for offer and sale by the Underwriter under the applicable state securities or Blue Sky laws and real estate syndication laws of such jurisdictions as Grandview you may reasonably request, if any; provided, that in no event shall however, the Company will not be obligated -------- ------- required to qualify as a foreign corporation, file a general consent 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 such jurisdiction, subject itself to taxation in respect of doing business in any jurisdiction where in which it is not now otherwise so subject, or provide any undertaking or make any change in its charter or by-laws that the Board of Directors of the Company reasonably determines to be contrary to the best interests of the Company and its stockholders. In each jurisdiction in which the Shares have been so qualified or registered, the Company will use all reasonable efforts to file such statements and reports as may be required by the laws of such jurisdiction, to continue such qualification or registration in effect for so long a period as the Underwriter may reasonably request for the distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such qualification or registration; provided, however, the Company will not -------- ------- be required to qualify as a foreign corporation, file a general consent to service of process in any such jurisdiction, subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject, or provide any undertaking or make any change in its charter or by-laws that the Board of Directors of the Company reasonably determines to be contrary to the best interests of the Company and its stockholders. (g) To make generally available to the Company's stockholders as soon as reasonably practicable but not later than sixty (60) days after the close of the period covered thereby (ninety (90) days in the event the close of such period is the close of the Company's fiscal year), an earnings statement (in form complying with the provisions of Rule 158 of the Act) covering a period of at least twelve months after the effective date of the Registration Statement (but in no event commencing later than ninety (90) days after such date) which shall satisfy the provisions of Section 11(a) of the Act, and, if required by Rule 158 of the Act, to file such statement as an exhibit to the next periodic report required to be filed by the Company under the Exchange Act covering the period when such earnings statement is released. (h) During the period of five years after the date of this Agreement, the Company will furnish to you as soon as available a copy of each regular and periodic report or other publicly available information of the Company and any of its subsidiaries mailed to the holders of the Shares or filed with the Commission or any securities exchange. (i) The Company will apply During the net proceeds from period when the offering and sale Prospectus is required to be delivered under the Act or the Exchange Act in connection with sales of the Offered Securities in Shares, to file all documents required to be filed by it with the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of GrandviewCommission pursuant to Section 13, which shall not be unreasonably withheld, conditioned 14 or delayed, no proceeds 15 of the Offering will be used to pay outstanding loans from officers, directors or stockholdersExchange Act within the time periods required by the Exchange Act. (j) The Company will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement and any amendment thereto (including financial statements and exhibits), each preliminary prospectus, the Prospectus and all amendments and supplements to any of them prior to or during the period specified in paragraph (b), (ii) the printing and delivery of this Agreement and the Blue Sky Memorandum (including the reasonable disbursements of counsel for the Underwriter relating to the printing and delivery of the Blue Sky Memorandum), (iii) the fee of and the filings and clearance, if any, with the National Association of Securities Dealers, Inc. (the "NASD") in connection with the Offering, (iv) the fee of and the listing of the Shares on the New York Stock Exchange, Inc. ("NYSE"), (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Shares by the Underwriter or by dealers to whom Shares may be sold, (vi) the preparation, issuance and delivery of certificates for the Shares to the Underwriter, (vii) the costs and charges of any transfer agent or registrar, (viii) any transfer taxes imposed on the sale by the Company of the Shares to the Underwriter and (ix) the fees and disbursements of the Company's counsel and accountants. (k) The Company will use its best efforts to ensure that maintain the listing of the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing NYSE for a period of at least three (3) years after the Closing. (k) The Closing Date and thereafter unless the Company's Board of Directors determines that it is no longer in the best interests of the Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, Shares to continue to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closingso listed. (l) The Company shall retain a transfer agent for will use its best efforts to do and perform all things required to be done and performed under this Agreement by the Company’s Common Stock Company prior to the Closing Date or any Option Closing Date, as the case may be, and continue to retain such transfer agent, or a comparable firm, for a period satisfy all conditions precedent to the delivery of three (3) years after the ClosingShares. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period will use the net proceeds received by it from the sale of two (2) years after the ClosingShares in the manner specified in the Prospectus Supplement under "Use of Proceeds." (n) The Company shall register will prepare and file or transmit for filing with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period Commission in accordance with Rule 424(b) of three (3) years from the ClosingAct copies of the Prospectus. (o) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, use its best efforts to cause or result in, or which will constitute, stabilization continue to qualify as a "real estate investment trust" ("REIT") under Sections 856 through 860 of the price Internal Revenue Code of 1986, as amended (the "Code"), for a period of two years after the date of this Agreement unless the Company's Board of Directors determines that it is no longer in the best interests of the Shares Company to facilitate the sale or resale of any of the Sharesbe so qualified. (p) The Company shallhereby agrees not to, upon directly or indirectly, register the reasonable request sale of, offer to sell, sell, contract to sell, grant any option to purchase or otherwise dispose of any Shares of common stock, par value $.01 per share, of the Underwriters, deliver written affirmation Company ("Common Shares") or any securities convertible into or exercisable or exchangeable for such Common Shares or in any other manner transfer all or a portion of the economic consequences associated with the ownership of any certificate delivered such Common Shares, except to the Underwriters Underwriter pursuant to Section 7 prior to any Closing Date following this Agreement, for a period of 45 days after the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes date of the public offering materials within a reasonable time after Prospectus Supplement without the Closingprior written consent of the Underwriter. Notwithstanding the foregoing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, during such period the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding may (i) sales grant shares of common stock and stock options pursuant to employees under any compensation employee benefit or incentive plan or management or director stock option purchase plan approved by the shareholders of the Company, (ii) shares issued in payment issue Common Shares upon the exercise of the consideration for an acquisition and such options, (iii) conventional banking arrangements and commercial debt financing) issue Common Shares in consideration of real property and/or other assets acquired by the Company or any a subsidiary thereof, (iv) issue Common Shares in a merger or successor of consolidation transaction in which the Company during or a subsidiary thereof is the one year period following the Closing Date. If Grandview accepts such right of first refusalsurviving entity and (v) issue Common Shares in exchange for partnership units in TriNet Sunnyvale Partners, Grandview shall be entitled to no less than 33.33% of the underwritingL.P. and TriNet Property Partners, non-accountable expenses allowanceL.P., warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of d/b/a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeTriNet Property Partners Limited Partnership.

Appears in 1 contract

Samples: Underwriting Agreement (Trinet Corporate Realty Trust Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters you as follows: (a) The Company shall use its best efforts to cause the Registration Statement has and any amendments to become effectiveeffective as promptly as practicable and will not at any time, and if Rule 430A is used whether before or after the filing effective date of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this AgreementRegistration Statement, file any amendment or supplement to the Registration Statement or supplement to the Prospectus unless a copy thereof or file any document under the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act") before termination of the offering of the Shares by you of which you and your counsel shall first not previously have been submitted advised and furnished with a copy, or to Grandview within a reasonable period of time prior which you or your counsel shall have objected (except if deemed necessary by counsel for the Company, in which case you shall have the right to terminate this Agreement upon prompt notice to the filing thereof Company), or which is not in compliance with the Act, the Exchange Act, or the Rules and Grandview shall not have reasonably objected thereto in good faith. (c) The Regulations. As soon as the Company is advised or obtains knowledge thereof, the Company will notify the Underwriters promptlyadvise you, and will, if requestedas soon as practicable, confirm such notification in writing: , (i) when the Registration Statement, as amended, becomes effective and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; , (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectusinitiation, or the initiation threatening, of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any Shares for offering or sale in connection with any jurisdiction or of the offering contemplated herebyinitiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission, and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or any state securities commission shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the withdrawal lifting of such order or suspension. (b) The Company will furnish to you, without charge, three signed copies of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and all exhibits. (c) The Company will give you advance notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, and will not file any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant amendment or supplement to Rule 430A, it will use its best efforts to comply which you shall reasonably object in writing or which is not in compliance with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all such filingsAct. (d) IfFrom the date hereof, at and thereafter from time to time, the Company will deliver to you, without charge, as many copies of the Prospectus, or any time when a Prospectus relating amendment or supplement thereto as you may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus is required to be delivered under the Securities Act, the Company becomes aware Act in connection therewith. If during such period of the occurrence of time any event as a result of shall occur which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary your counsel should be set forth in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, supplement or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationslaw, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly forthwith prepare and duly file with the Commission, at the Company’s expense, Commission an appropriate supplement or amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance thereto and will deliver to the Underwritersyou, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters you may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (he) Prior to the sale any public offering of the Shares to the Investorsby you, the Company will cooperate with Grandview you and Underwriter Counsel your counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky blue sky laws of such jurisdictions as Grandview you request. The Company will pay all reasonable fees and expenses (including reasonable fees and expenses of counsel) relating to qualification of the Shares under such securities or blue sky laws and in connection with the determination of the eligibility of the Shares for investments under the laws of such jurisdictions as you may reasonably requestdesignate, if any; provided, that in no event shall including the Company be obligated to qualify to do business in reasonable expenses of any jurisdiction where it is not now so qualified opinion of local counsel required by any state securities or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subjectblue sky authorities. (if) The Company will apply pay all expenses in connection with (1) the net proceeds from preparation, printing and filing of the Registration Statement, each preliminary prospectus, the Prospectus, any legal investment memoranda and the blue sky Survey, (2) the issuance and delivery of the Shares (other than transfer taxes),(3) the rating of the Shares by rating agencies, (4) furnishing such copies of the Registration Statement, the Prospectus and any preliminary prospectus, all amendments and supplements thereto, as may reasonably be requested for use in connection with the offering and sale of the Offered Securities Shares by you or by dealers to whom Shares may be sold, and (5) filings with the "NASD". (g) The Company will use the net proceeds from the sale of the Shares in the manner set forth specified in the Prospectus under the caption "Use of Proceeds.” Without the written consent of Grandview" (h) The Company will appoint and retain, which shall not be unreasonably withheld, conditioned or delayed, no proceeds while any of the Offering Shares remain outstanding, a transfer agent for the Shares, and, if necessary, a registrar for the Shares (who may be the transfer agent), and will make arrangements to have available at the offices of the transfer agent certificates for the Shares in such quantities as may, from time to time, be used necessary. As of the date of this Agreement, the transfer agent for the Shares of the Company is Oxford Transfer and Registrar, 317 S.W. Alder, #1120, Portland, OR 97204. (x) Xxx Xxmpany shall utilize its best efforts to pay outstanding loans from officers, directors or stockholdersobtain the listing of the Shares on the NASDAQ Small Cap Market system. (j) The Neither the Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time nor any of the Initial ClosingSubsidiaries nor any of their respective executive officers, and seeking and using its best efforts to maintain such listing for a period of at least three directors, principal stockholders or affiliates (3) years after within the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation meaning of the financial statements Rules and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3Regulations) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any timetake, directly or indirectly, take any action intendeddesigned to, or which might in the future reasonably be expected, expected to cause or result in, stabilization or which will constitute, stabilization manipulation of the price of the any Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor in violation of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeExchange Act.

Appears in 1 contract

Samples: Underwriting Agreement (Beta Oil & Gas Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows:you: ------------------------- (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such pur- poses, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company files a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish to you 3 signed copies of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as first filed with the Commission pursuant and of each amendment to said Rule 430A it, including all exhibits and documents incorporated therein by reference, and to notify furnish to you and each Underwriter designated by you such number of conformed copies of the Underwriters promptly Registration Statement as so filed and of all such filingseach amendment to it, without exhibits but including documents incorporated therein by reference, as you may reasonably request. (dc) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which To prepare the Prospectus, as then amended or supplementedthe form and substance of which shall be reasonably satisfactory to you, would, and to file the Prospectus in such form with the reasonable judgment of counsel to Commission within the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary applicable period specified in order to make Rule 424(b) under the statements therein, Act; during the period specified in the light of the circumstances under which they were madeSection 5(d) below, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include file any untrue statement of a material fact or omit further amendment to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement and not to comply with make any amendment or supplement to the Securities Act Prospectus of which you shall not previously have been advised or the Rules and Regulations, the Company will promptly notify Grandview to which you shall reasonably object after being so advised; and, subject during such period, to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expensepromptly upon your reasonable request, an any amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable efforts to cause any such statement or omission or effects such compliance and will deliver amendment to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents Registration Statement to the use of the Prospectus or any amendment or supplement thereto by the Underwritersbecome promptly effective. (ed) The Company will furnish Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus or (and of any amendment or supplement thereto to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request. (e) If during the Underwriters period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the opinion of its counsel or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements of material facts therein not misleading, or if, in the judgment of the Company or in the opinion of its counsel or in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements of material facts in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its stockholders as soon as reasonably practicable an earnings statement covering the twelve-month period ending March 31, except for 2000 that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior During the period of three years after the date of this Agreement, to furnish to you as soon as reasonably practicable after they become available copies of all reports or other communications furnished to the sale record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all reasonable expenses incident to the performance of the Company's or the Selling Stockholders' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate with Grandview and Underwriter Counsel including any transfer or other taxes payable thereon, (iii) all reasonable expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Blue Sky Survey in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(iv) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that in no event shall Inc., (v) all costs and expenses incident to the listing of the Shares on the NYSE, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar and/or depositary, and (viii) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it and the Selling Stockholders hereunder for which provision is not now so qualified otherwise made in this Section. The provisions of this Section shall not supersede or to take otherwise affect any action which would subject it to general service agreement that the Company and the Selling Stockholders may otherwise have for allocation of process such expenses among themselves. Except as expressly provided in any jurisdiction where it is not now so subject. this paragraph (i) The Company will apply ), the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used Underwriters agree to pay outstanding loans from officersall of their costs and expenses, directors or stockholdersincluding fees and disbursements of their counsel. (j) The During the period of three years after the date of this Agreement, to mail and make generally available as soon as reasonably practicable after the end of each fiscal year to the record holders of its Common Stock a financial report of the Company will and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by independent public accountants, and to mail and make generally available as soon as reasonably practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year. (k) To use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, do and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, perform all things required or necessary to be included in done and performed under this Agreement by the Registration Statement Company prior to the Closing Date and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after satisfy all conditions precedent to the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any delivery of the Shares. (pl) The Company shall, upon If the reasonable request Registration Statement at the time of the Underwriterseffectiveness of this Agreement does not cover all of the Shares, deliver written affirmation to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 11:00 A.M., New York City time, on the first business day following the date of any certificate delivered this Agreement and to pay to the Underwriters Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Section 7 prior to any Closing Date following Rule 111(b) under the Initial Closing DateAct. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Amerisource Distribution Corp)

Agreements of the Company. The Company covenants and agrees with the several U.S. Underwriters as follows: (ai) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (bii) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event event, including the filing of any information, documents or reports pursuant to the Exchange Act, that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the Rules and Regulations to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectuses (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the time. (iii) The Company has omitted any information from will furnish to you, without charge, four signed copies of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the Registration Statement and will also furnish to notify you, without charge, such number of conformed copies of the Underwriters promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request. (div) If, at The Company will not (i) file any time when a Prospectus relating amendment to the Shares Registration Statement or make any amendment or supplement to the Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised or (ii) so long as, in the written opinion of counsel for the U.S. Underwriters (a copy of which shall be delivered to the Company), a prospectus is required to be delivered under in connection with sales by any U.S. Underwriter or dealer, file any information, documents or reports pursuant to the Securities Exchange Act, without delivering a copy of such information, documents or reports to you, prior to or concurrently with such filing. (v) Prior to the execution and delivery of this Agreement, the Company becomes aware has delivered or will deliver to you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the occurrence U.S. Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by dealers, prior to the date of the U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company. (vi) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the U.S. Underwriters a U.S. Prospectus is required by the Act or the Rules and Regulations to be delivered in connection with sales by any U.S. Underwriter or dealer, the Company will expeditiously deliver to each U.S. Underwriter and each dealer, without charge, as many copies of the U.S. Prospectus (and of any event amendment or supplement thereto) as a result you may reasonably request. The Company consents to the use of the U.S. Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and the Rules and Regulations and with the securities or Blue Sky laws of the jurisdictions in which the ProspectusShares are offered by the several U.S. Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the U.S. Prospectus is required by the Act or the Rules and Regulations to be delivered in connection with sales by any U.S. Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the written opinion of counsel for the U.S. Underwriters is required to be set forth in the U.S. Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Registration StatementU.S. Prospectus to comply with the Act or any other law, as then the Company will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto and will expeditiously furnish to the U.S. Underwriters and dealers a reasonable number of copies thereof. In the event that the Company and you agree that the U.S. Prospectus should be amended or supplemented, wouldthe Company, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereofrequested by you, will promptly prepare and file with issue a press release announcing or disclosing the Commission, at matters to be covered by the Company’s expense, an amendment to the Registration Statement or an proposed amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriterssupplement. (evii) The Company will furnish to the Underwriters cooperate with you and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except counsel for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel U.S. Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several U.S. Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably requestdesignate, if anyand will maintain such qualifications in effect for as long as may be required for the distribution of the Shares, and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, or subject it to general taxation, in any jurisdiction where it is not now so subject. (iviii) The Company will apply make generally available to its securityholders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the net proceeds from the offering and sale effective date of the Offered Securities Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act. (ix) During the period of three years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission or the Nasdaq National Market, and (ii) from time to time such other information concerning the Company as you may reasonably request; provided that the Company shall not be required to provide to you any such information that is not available to the public. (x) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the U.S. Underwriters because of any failure or refusal on the part of the Company or any of the Selling Shareholders to comply, in any material respect, with the manner set forth terms or fulfill, in any material respect, any of the Prospectus conditions of this Agreement, the Company agrees to reimburse the U.S. Underwriters for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the U.S. Underwriters) incurred by you in connection herewith. (xi) If Rule 430A of the Act is employed, the Company will timely file the Prospectuses pursuant to Rule 424(b) under the caption “Use Act and will advise you of Proceedsthe time and manner of such filing.” Without (xii) For a period of 180 days after the date hereof (the "Lock-up Period"), neither the Company nor XxxXxxxx Re will, without the prior written consent of GrandviewXxxxx Xxxxxx Inc., which shall not be unreasonably withheldsell, conditioned offer to sell, solicit an offer to buy, contract to sell, grant any option or delayedright to purchase or acquire, no proceeds or otherwise transfer or dispose of, any common shares of the Offering will be used Company or LaSalle Re or any of their respective subsidiaries (or any securities convertible into or exercisable or exchangeable for such common shares), except that the Company may issue Common Shares pursuant to pay outstanding loans from officers, directors or stockholdersstock purchase plans and grant options pursuant to stock option plans. (jxiii) The Company has furnished or will furnish to you "lock-up" letters, signed by each of the officers and directors set forth under the heading "Management" in the Prospectuses and each of the Selling Shareholders, stating that, for the Lock-up Period, such officer, director or Selling Shareholder will not, without the prior written consent of Xxxxx Xxxxxx Inc., sell, offer to sell, solicit an offer to buy, contract to sell, grant any option or right to purchase or acquire, or otherwise transfer or dispose of, any common shares of the Company or any of its subsidiaries (or any securities convertible into or exercisable or exchangeable for such common shares), except that such officer, director, or Selling Shareholder may (i) sell shares subject to the over-allotment option pursuant to the U.S. Underwriting Agreement; (ii) sell shares repurchased by the Company pursuant to the Company's capital management strategy (as contemplated in the Prospectuses); and (iii) transfer shares as bona fide gifts and pledge shares so long as the donees or the pledgees, as the case may be, agree in writing with the U.S. Underwriters to be bound by the terms of such lock-up letter; each such lock-up letter shall also state that prior to the expiration of the Lock-Up Period, such officer, director or Selling Shareholder will not announce or disclose any intention to do anything after the expiration of such period which such officer, director or Selling Shareholder is prohibited, as provided in this Section 5(m), from doing during such period. (xiv) Except as stated in this Agreement and in the International Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, neither the Company nor any of its subsidiaries has taken or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Shares or any other security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement. (xv) The Company will use its best efforts to ensure that have the Common Shares are listed on the NASDAQ Capital Nasdaq National Market at concurrently with the time effectiveness of the Initial Closing, registration statement and seeking and using its best efforts to maintain such listing for a period and the registration of at least three (3) years after the ClosingShares under the Exchange Act. (kxvi) The Company shall retain a firm hereby validly and irrevocably submits to the jurisdiction of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation any federal or state court sitting in The City of the financial statements New York and the financial exhibits, if anyirrevocably waive, to be included the fullest extent permitted by law, any objection that either of them may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in the Registration Statement any such court based on or arising under this Agreement and continuing to retain any claim that any such accountantssuit, action or comparable accountants, for a period of at least three (3) years after the Closingproceeding brought in any such court has been brought in an inconvenient forum. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (oxvii) The Company will not at any time, directly use all reasonable commercial efforts to satisfy on or indirectly, take any action intended, or which might reasonably be expected, before the Closing Date all conditions contained in Section 10 hereof to cause or result in, or which will constitute, stabilization of the price of the Shares U.S. Underwriters' obligations to facilitate the sale or resale of any of purchase the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: u.s. Underwriting Agreement (Lasalle Re Holdings LTD)

Agreements of the Company. The Company covenants and agrees with the Underwriters as follows: (a) The Registration Statement has become effectiveCompany agrees that, for the duration of the Support Period, the Company shall, and if Rule 430A is used shall cause each of its subsidiaries included in the definition of Company, to: (i) support and take all actions reasonably necessary to facilitate the Restructuring and Sale Transaction(s), as contemplated under this Agreement; (ii) timely file any objection or opposition to any motion filed with the filing Bankruptcy Court seeking the entry of an order modifying or terminating the Company’s exclusive right to file and/or solicit acceptances of a plan of reorganization, directing the appointment of an examiner with expanded powers or a trustee, or converting the Chapter 11 Cases to cases under chapter 7 of the Prospectus Bankruptcy Code; (iii) not file for relief that (1) is otherwise inconsistent with this Agreement in any material respect or (2) would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring; (iv) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required under Rule 424(bagreements to effectuate and consummate the Restructuring as contemplated herein; (v) timely file a formal objection to any motion, application, or adversary proceeding challenging the validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of the Claims of the Supporting Creditors as contemplated here; (vi) provide reasonably prompt written notice (in accordance with Section 22 hereof) to the Supporting Creditors, solely to the extent the Company has knowledge, of (A) any governmental or third party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened) that would prevent, hinder, or delay the consummation of the Restructuring in any material respect, (B) any failure of the Company to comply with any covenant, agreement or condition hereunder in any material respect, (C) any condition precedent contained in the Plan not to timely occur or become impossible to satisfy; (D) receipt of any notice from any third party alleging that the consent of such party is or may be required in connection with the transactions contemplated by the Restructuring; (vii) provide to the Supporting Creditors and their respective professionals, (A) upon reasonable advance notice to the Company and during normal business hours, reasonable access to the respective management and advisors of the Company for the purposes of evaluating the Company’s finances and operations and participating in the planning process with respect to the Restructuring, and (B) timely and reasonable responses to all reasonable diligence requests; (viii) not amend or modify, or file a pleading seeking authority to amend or modify, the Definitive Documents or any other document related to the Restructuring in a manner that is materially inconsistent with this Agreement; (ix) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring and Sale Transaction(s); (x) not take any action that is materially inconsistent with, or is intended or is reasonably likely to materially interfere with the Restructuring and Sale Transaction(s); (xi) provide draft copies of any material pleading at least two (2) business days prior to the date when the Company intends to file any such pleading or other document, and shall consult in good faith with Supporting Creditors’ Advisors regarding the form and substance of such drafts (provided that if delivery of such material pleading at least two (2) business days in advance is not reasonably practicable, such pleading shall be delivered as soon as reasonably practicable prior to filing); (xii) provide draft copies of all material motions or applications, Definitive Documents and other documents (including, without limitation, all first day and second day motions and orders of the Bankruptcy Court approving any first day motions or second day motions (other than retention applications), the Plan, the Disclosure Statement, ballots and other solicitation materials in respect of the Plan, any proposed amended version of the Plan or the Disclosure Statement, a proposed disclosure statement order and a proposed confirmation order) the Company will intends to file with the Prospectus Bankruptcy Court to the Supporting Creditors’ Advisors at least two (properly completed 2) business days prior to the date when the Company intends to file any such pleading or other document (provided that if Rule 430A has been useddelivery of such motions, orders or materials (other than the Plan, the Disclosure Statement, a disclosure statement order, or a confirmation order) at least two (2) business days in advance is not reasonably practicable, such motion, order or material shall be delivered as soon as reasonably practicable prior to filing), subject and shall consult in good faith with such counsel regarding the form and substance of any such proposed filing with the Bankruptcy Court; (xiii) not, without the consent of the Required Supporting Creditors, (a) authorize, approve, or otherwise implement any change to the prior approval senior management team, including the hiring, termination, change in position or change in compensation of Grandviewany member of the Company’s senior management team, pursuant (b) amend, modify or supplement any existing employment agreement, (c) make, declare, set aside or pay any severance cost or expenses; (xiv) only consummate a Sale Transaction with a successful bidder with the consent of the Required Supporting Creditors; (xv) approve, authorize or agree (orally or in writing) to Rule 424(btake any of the actions se forth above; and (xvi) within to the prescribed time period and will provide a copy extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring, negotiate in good faith appropriate additional or alternative provisions to address any such filing to Grandview promptly following such filingimpediment. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of If the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect receives a written proposal or that requires the making expression of any changes in the Registration Statement interest regarding or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension plan of reorganization or liquidation, proposal, offer, dissolution, winding up, liquidation, reorganization, merger, consolidation, business combination, joint venture, partnership, sale of assets or equity interests or restructuring (other than the Restructuring) involving the Company, or any of their assets, properties or businesses (an “Alternative Proposal”), the Debtors shall promptly notify the Supporting Creditors’ Advisors of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal receipt of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions proposal or expression of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all such filings. (d) If, at any time when a Prospectus interest relating to an Alternative Proposal, with such notice to include the Shares is required to be delivered under material terms thereof, including the Securities Act, the Company becomes aware identity of the occurrence person or group of any event as persons involved (unless prohibited by a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwritersseparate agreement). (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Restructuring Support Agreement (Ion Geophysical Corp)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment or Abbreviated Registration Statement to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when the Registration Statement or such post-effective amendment or Abbreviated Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will notadvise you and the Sara Xxx Xxxling Stockholders promptly and, during such period as the Prospectus would be required if requested by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement you or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company Sara Xxx Xxxling Stockholders, will notify the Underwriters promptly, and will, if requested, confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer and offering or sale in any jurisdictionjurisdiction or the initiation of any proceeding for such purpose; and (iv) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement or the Prospectuses (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading (in the case of the Prospectuses or any such supplement or amendment, in the light of the circumstances under which they were made), or of the necessity to amend or supplement the Prospectuses (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (c) The Company will furnish to you and the Sara Xxx Xxxling Stockholders, without charge, (i) five signed copies of the registration statement as originally filed with the Commission and of each (d) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in paragraph (f) below, file any document which, upon filing becomes an Incorporated Document, of which you or the Sara Xxx Xxxling Stockholders shall not previously have been advised or to which, after you or the Sara Xxx Xxxling Stockholders shall have received a copy of the document proposed to be filed, you or the Sara Xxx Xxxling Stockholders shall reasonably object. (e) Prior to the execution and delivery of this Agreement, the Company has omitted any information from delivered to you and the Registration StatementSara Xxx Xxxling Stockholders, pursuant without charge, in such quantities as you have requested, copies of each form of the U.S. Prepricing Prospectus. The Company consents to Rule 430Athe use, it will use its best efforts to comply in accordance with the provisions of the Act and make all requisite filings with the Commission pursuant securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to said Rule 430A and to notify the Underwriters promptly date of all such filingsthe U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company. (df) IfAs soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a U.S. Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer, at the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the U.S. Prospectus (and of any time when a Prospectus relating amendment or supplement thereto) as you may request. The Company consents to the use of the U.S. Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the U.S. Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters or the Sara Xxx Xxxling Stockholders is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, U.S. Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make supplement or amend the statements thereinU.S. Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement order to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the CommissionCommission an appropriate supplement or amendment thereto (or to such document), at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will expeditiously furnish to the Underwriters and Underwriter Counseldealers and to the Sara Xxx Xxxling Stockholders a reasonable number of copies thereof. In the event that the Company and you, without charge: (i) one conformed copy as Representatives of the Registration Statement as originally filed with several Underwriters, agree that the Commission and each amendment theretoU.S. Prospectus should be amended or supplemented, including financial statements and schedulesthe Company, and all exhibits theretoif requested by you, (ii) so long as will promptly issue a prospectus relating to press release announcing or disclosing the Shares is required matters to be delivered under covered by the Securities Act, as many copies of the Prospectus or any proposed amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementsupplement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if any; provided, that in no event shall the Company be obligated designate and will file such consents 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 other documents necessary or appropriate in order to effect such (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing not later than the first day of the fiscal quarter following the fiscal quarter that includes the Closing Date, as soon as practicable after the end of such period, but in any jurisdiction where it is event not now so subjectlater than 120 days after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder. (i) The During the period of three years hereafter, the Company will apply furnish to the net proceeds from the offering and sale Representatives (i) as soon as practicable after they are available, copies of each report of the Offered Securities in Company mailed to stockholders or filed with the manner set forth in Commission, and (ii) from time to time such other information concerning the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersCompany as you may reasonably request. (j) The Company will use its best efforts If this Agreement shall terminate or shall be terminated after execution pursuant to ensure that any provisions hereof (otherwise than pursuant to the Shares are listed second paragraph of Section 13 hereof or by notice given by you terminating this Agreement pursuant to Section 13 or Section 14 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the NASDAQ Capital Market at the time part of the Initial ClosingCompany or any of the Selling Stockholders to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including reasonable fees and seeking and using its best efforts to maintain such listing expenses of counsel for a period of at least three (3the Underwriters) years after the Closingincurred by you in connection herewith. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation If Rule 430A of the financial statements Act is employed, the Company will timely file the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of the financial exhibitstime and manner of such filing. (l) Except pursuant to this Agreement or as otherwise provided in this paragraph (1), if anythe Company will not offer, sell, contract to be included in the Registration Statement and continuing to retain such accountantssell or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or comparable accountantsgrant any options or warrants to purchase Common Stock, for a period of at least three (3) years 90 days after the Closing. date of the Prospectuses, without the prior written consent of Smitx Xxxxxx Xxx. This paragraph (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, not prohibit or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of limit any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding following: (i) sales the grant of options to employees under any compensation purchase Common Stock or stock option plan approved by the shareholders making of other awards pursuant to the Company, 's 1994 Stock Incentive Plan or the grant of options to purchase Common Stock pursuant to the Company's Stock Option Plan for Outside Directors; or (ii) shares issued in payment the offering, issuance or sale of Common Stock pursuant to the consideration Company's 1994 Stock Incentive Plan, Stock Option Plan for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company Outside Directors, Employee Stock Purchase Plan or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.401(k)

Appears in 1 contract

Samples: u.s. Underwriting Agreement (Jp Foodservice Inc)

Agreements of the Company. The Company covenants and agrees with the several U.S. ------------------------- Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event event, including the filing of any information, documents or reports pursuant to the Exchange Act, that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectuses (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (c) The Company will furnish to you, without charge (i) four signed copies of the Company has omitted any information from Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement, pursuant (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may request and (iv) four copies of the exhibits to Rule 430A, it 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 Underwriters promptly of all such filingsIncorporated Documents. (d) If, at The Company will not file any time when a Prospectus relating amendment to the Registration Statement or make any amendment or supplement to the Prospectuses or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object. (e) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter request, copies of each form of the U.S. Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by dealers, prior to the date of the U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the U.S. Underwriters a U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer, the Company will expeditiously deliver to each U.S. Underwriter and each dealer, without charge, as many copies of the U.S. Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Company consents to the use of the U.S. Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the opinion of counsel for the U.S. Underwriters is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, U.S. Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Registration StatementU.S. Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the U.S. Underwriters and dealers a reasonable number of copies thereof. In the event that the Company and you, as then Representatives of the several U.S. Underwriters, agree that the U.S. Prospectus should be amended or supplemented, wouldthe Company, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereofrequested by you, will promptly prepare and file with issue a press release announcing or disclosing the Commission, at matters to be covered by the Company’s expense, an amendment to the Registration Statement or an proposed amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementsupplement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the U.S. Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several U.S. Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section ll(a) of the Act. (i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission or the NYSE and (ii) from time to time such other information concerning the Company as you may request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the U.S. Underwriters because of any failure or refusal on the part of the Company or any of the Selling Stockholders to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the U.S. Underwriters) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares to be sold by it hereunder substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholdersProspectuses. (jl) The If Rule 430A of the Act is employed, the Company will use its best efforts timely file the Prospectuses pursuant to ensure that Rule 424(b) under the Shares are listed on the NASDAQ Capital Market at Act and will advise you of the time and manner of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closingfiling. (km) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements Except as provided in this Agreement and the financial exhibitsInternational Underwriting Agreement, if anythe Company will not offer, sell, contract to be included in the Registration Statement and continuing to retain such accountantssell or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or comparable accountantsgrant any options or warrants to purchase Common Stock, except for sales to the U.S. Underwriters pursuant to this Agreement and to the Managers pursuant to the International Underwriting Agreement, for a period of at least three (3) years 60 days after the Closing. (l) The Company shall retain a transfer agent for date of the Company’s Common Stock and continue to retain such transfer agentProspectuses, or a comparable firm, for a period without the prior written consent of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing.Xxxxx Xxxxxx Inc. (n) The Company shall register with the Corporation Records Service published has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by Standard & Poor’s Corporation each of its current officers and covenant to maintain such registration for a period directors and each of three (3) years from the Closingits stockholders listed in Schedule III. (o) The Except as stated in this Agreement and in the International Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Common Stock to facilitate the sale or resale of any of the Shares. (p) The Company shallwill use its best efforts to have the shares of Common Stock which it agrees to sell under this Agreement listed, upon subject to notice of issuance, on the reasonable request of New York Stock Exchange on or before the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: u.s. Underwriting Agreement (Nova Corp \Ga\)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followseach Underwriter: (a) The Registration Statement has become effective, Company shall furnish such information as may be required and if Rule 430A is used otherwise to cooperate in qualifying the Notes for offering and sale under (or otherwise obtaining exemptions from the filing application of) the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Prospectus is otherwise required under Rule 424(b), Notes; provided that the Company will file the Prospectus (properly completed if Rule 430A has been used), subject shall not be required to qualify as a foreign corporation or to consent to the prior approval service of Grandview, pursuant process under the laws of any such jurisdiction (except service of process with respect to Rule 424(bthe offering and sale of the Notes) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filingwhere it is not presently qualified. (b) The Company will notIf, during such period as at the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by time this AgreementAgreement is executed and delivered, file any it is necessary for a post-effective amendment or supplement to the Registration Statement or to be declared effective before the Prospectus unless a copy thereof shall first have been submitted offering of the Notes may commence, the Company will use its reasonable best efforts to Grandview within a reasonable period of time prior cause such post-effective amendment to become effective as soon as possible and will advise the filing thereof and Grandview shall not have reasonably objected thereto Representative promptly and, if requested by the Representative, will confirm such advice in good faithwriting, when such post-effective amendment has become effective. (c) The Company will notify shall prepare the Prospectus in a form approved by the Underwriters promptlyand file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 5:30 p.m. (New York City time), on September 27, 2021 or on such other day as the parties may mutually agree and willto furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 5:30 p.m. New York City time) on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree to the Underwriters copies of the Prospectus (or of the Prospectus as amended or supplemented if requestedthe Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version transmitted to the Commission for filing via EXXXX, except to the extent permitted by Regulation S-T of the Securities Act. (d) The Company shall file the Final Term Sheet pursuant to Rule 433(d) under the Securities Act as promptly as possible, but in any case not later than the time required by such rule. (e) The Company shall advise the Representative promptly and (if requested by the Representative) to confirm such notification advice in writing: (i) , when any post-effective amendment to the Registration Statement becomes effective; effective under the Securities Act. (iif) The Company shall furnish a copy of each proposed Issuer Free Writing Prospectus, if any, to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent will not be unreasonably withheld or delayed) prior to referring to, using or filing with the Commission any Issuer Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto and the Final Term Sheet. (g) The Company shall comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable. (h) The Company shall advise the Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by by, the Commission for any amendments to the Registration Statement or any amendment or supplements to the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information; information with respect thereto, (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with or of any order preventing or suspending the offering contemplated herebyuse of the Preliminary Prospectus, the Company will Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the withdrawal lifting or removal of any such order at as soon as possible, (iii) any examination pursuant to Section 8(e) of the earliest possible moment. If the Company has omitted any information from Securities Act concerning the Registration Statement, pursuant or (iv) if the Company becomes subject to Rule 430A, it will use its best efforts to comply a proceeding under Section 8A of the Securities Act in connection with the provisions public offering of Notes contemplated herein, and make all requisite filings with shall advise the Commission pursuant to said Rule 430A and to notify the Underwriters Representative promptly of all such filings. (d) Ifany proposal to amend or supplement the Registration Statement, at the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, during the time when a Prospectus relating to the Shares Notes (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, to file no such amendment or supplement to which the Representative shall reasonably object in writing. (i) The Company becomes aware shall advise the Underwriters promptly of the occurrence of any event as or development known to the Company within the time during which a result of which Prospectus relating to the Prospectus, as then amended Notes (or supplemented, wouldin lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act which, in the reasonable judgment of counsel to the Company Company, (i) would require the making of any change in the Registration Statement, the Prospectus or Underwriter Counselthe Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include any an untrue statement of a material fact or omit to state a material fact necessary in order required to make the statements therein, in the light of the circumstances under which they were made, not misleading, be stated therein or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Notes, or (iii) if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement Disclosure Package to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview any law and, subject during such time, to Section 4(b) hereof, will promptly prepare and file furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission, Commission and thereafter promptly furnish at the Company’s expense, an amendment own expense to the Registration Statement or Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that corrects the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law. (j) The Company shall file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the reasonable judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission. (k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation and filing of the Registration Statement, the Preliminary Prospectus and the Prospectus, any Issuer Free Writing Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such statement copies of the Prospectus, Issuer Free Writing Prospectus and the Registration Statement and all amendments or omission supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Notes; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Notes, including any stamp or effects transfer taxes in connection with the original issuance and sale of the Notes to the Underwriters; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Notes; (v) any expenses and fees for the cost of ratings agencies; (vi) any registration or qualification of the Notes for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such compliance registration and will deliver qualification and the preparation of the blue sky memorandum); (vii) any filings required to be made with the Commission and FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) all “road show” costs and expenses for the offering (regardless of the form in which the “road show” is conducted), and all costs of the Company and Underwriters’ personnel, including but not limited to, commercial or charter air travel, local hotel accommodations, transportation and other expenses; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) the costs and expenses of causing the Notes to be eligible for clearance and settlement through DTC; (xi) out-of-pocket, accountable, bona fide expenses actually incurred by the Representative in connection with this offering, including any fees and disbursements of legal counsel to the Underwriters, without chargeup to an aggregate amount not to exceed $175,000, such number of copies thereof as the Underwriters may reasonably request. The Company consents in each case to the use extent permitted by FINRA regulations; (xii) the costs and expenses of background investigations; (xiii) a structuring fee to be paid to the Representative at the Closing Date in an amount equal to 1.0% of the gross proceeds of this offering ; (xiv) a backstop fee to be paid to the Representative at the Closing Date in an amount equal to $1.6 million, (or 2.0% of $80 million); and (xv) all other costs and expenses incident to the performance by the Company of its obligations hereunder. (l) Prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto by Issuer Free Writing Prospectus, during the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as time when a prospectus Prospectus relating to the Shares Notes (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, as many copies the Company shall furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. Representative (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned withheld or delayed, no proceeds of ) to the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The During the period referred to in paragraph (h) above, the Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, file all such documents in the manner and continue to retain such firm, or a comparable firm, for a period of two (2) years after within the Closingtime periods required by the Exchange Act. (n) The Company shall register apply the net proceeds of the sale of the Notes in accordance with its statements under the Corporation Records Service published by Standard & Poor’s Corporation caption “Use of Proceeds” in the Registration Statement, the Prospectus and covenant to maintain such registration for a period of three (3) years from the ClosingDisclosure Package. (o) The Company will shall make generally available to its security holders as soon as practicable, but in any event not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization later than the end of the price fiscal quarter first occurring after the first anniversary of the Shares to facilitate the sale or resale of any effective date of the SharesRegistration Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act) covering a period of 12 months beginning after the effective date of the Registration Statement. (p) The Company shallwill not, upon without the reasonable request prior written consent of the UnderwritersRepresentative, deliver written affirmation offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any certificate delivered transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act) any senior unsecured notes (other than the Notes sold to the Underwriters pursuant to Section 7 prior this Agreement) or publicly announce an intention to effect any Closing Date following such transaction for a period beginning on the Initial Closing Datedate hereof and extending through the 90th day hereafter. (q) The Company shall supply Grandview and its counselwill not take, at directly or indirectly, without giving effect to activities by the Company’s costsUnderwriter, with a reasonable number of bound volumes as to which the Company makes no representation, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the public offering materials within a reasonable time after price of the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by GrandviewNotes. (r) Upon The Company is not and, after giving effect to the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders offering and sale of the CompanyNotes, (ii) shares issued will not be an “investment company” as such terms are defined in payment the Investment Company Act of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal1940, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeamended.

Appears in 1 contract

Samples: Underwriting Agreement (iMedia Brands, Inc.)

Agreements of the Company. The Company covenants and agrees with the Underwriters several Managers as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event event, including the filing of any information, documents or reports pursuant to the Exchange Act, that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectuses (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the time. (c) The Company has omitted any information from will furnish to you, without charge, three signed copies of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the Registration Statement and will also furnish to notify you, without charge, such number of conformed copies of the Underwriters promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request. (d) If, at The Company will not (i) file any time when a Prospectus relating amendment to the Shares Registration Statement or make any amendment or supplement to the Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised or (ii) so long as, in the written opinion of counsel for the Managers (a copy of which shall be delivered to the Company), a prospectus is required to be delivered under in connection with sales by any Manager or dealer, file any information, documents or reports pursuant to the Securities Exchange Act, without delivering a copy of such information, documents or reports to you, as Lead Managers for the Managers, prior to or concurrently with such filing. (e) Prior to the execution and delivery of this Agreement, the Company becomes aware has delivered or will deliver to you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the occurrence International Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by dealers, prior to the date of the International Prospectus, of each International Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the Managers an International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer, the Company will expeditiously deliver to each Manager and each dealer, without charge, as many copies of the International Prospectus (and of any event amendment or supplement thereto) as you may reasonably request for a result period of nine months after the date of this Agreement; provided, however, that if a request for copies of the Prospectuses is made by any Manager or dealer after such nine-month period, the costs associated with the preparing and filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectuses and delivery of the Prospectuses (and of any amendment or supplement thereto) shall be borne by such Manager or dealer. The Company consents to the use of the International Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the ProspectusShares are offered by the several Managers and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the written opinion of counsel for the Managers is required to be set forth in the International Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Registration StatementInternational Prospectus in order to comply with the Act or any other law, the Company will make every reasonable effort to prepare and, subject to the provisions of paragraph (d) above and this paragraph (f), file with the Commission an appropriate supplement or amendment thereto, and will expeditiously furnish to the Managers and dealers a reasonable number of copies thereof. Each Manager agrees that after receipt of any supplement or amendment to the Prospectus, it will not deliver the Prospectus other than as so supplemented or amended. In the event that the Company and you, as then Lead Managers for the several Managers, agree that the International Prospectus should be amended or supplemented, wouldthe Company, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereofreasonably requested by you, will promptly prepare and file with issue a press release announcing or disclosing the Commission, at matters to be covered by the Company’s expense, an amendment to the Registration Statement or an proposed amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementsupplement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the Managers in connection with the registration or qualification of the Shares for offer offering and sale by the several Managers and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 that would subject it to general taxation or service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act. (i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission or the New York Stock Exchange, and (ii) from time to time such other information concerning the Company as you may reasonably request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Managers because of any failure or refusal on the part of the Company or any of the Selling Shareholders to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Lead Managers for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the Managers) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares to be sold by it hereunder substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectuses. (l) The If Rule 430A of the Act is employed, the Company shall retain a transfer agent for will make every reasonable effort to timely file the Company’s Common Stock Prospectuses pursuant to Rule 424(b) under the Act and continue to retain will advise you of the time and manner of such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for For a period of two (2) years 180 days after the Closingdate hereof (the "Lock-up Period"), the Company will not, without the prior written consent of Xxxxx Xxxxxx Inc., offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock that are exercisable during the Lock-up Period, except for (i) sales to the Managers pursuant to this Agreement and the U.S. Underwriters pursuant to the U.S. Underwriting Agreement, (ii) the issuance of shares upon exercise of outstanding options and (iii) the issuance of shares in connection with acquisitions, provided that the recipients of such shares agree not to sell the shares during the Lock-up Period. (n) The Company shall register with the Corporation Records Service published has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by Standard & Poor’s Corporation each of its current executive officers and covenant directors and will make every reasonable effort to maintain such registration for a period furnish to you "lock-up" letters signed by each of three (3) years from the Closingits shareholders designated by you. (o) The Except as stated in this Agreement and in the U.S. Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Common Stock to facilitate the sale or resale of any of the Shares. (p) The Company shallwill use its best efforts to have the Common Stock listed, upon subject to notice of issuance, on the reasonable request New York Stock Exchange concurrently with the effectiveness of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateRegistration Statement. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: International Underwriting Agreement (Pierce Leahy Corp)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, either (i) prior to the Closing Date or (ii) thereafter during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter Underwriter or dealer in connection with the offering contemplated by this Agreementdealer, file any amendment or supplement to the Registration Statement or the Prospectus with respect to the Shares (during the period referred to in (ii) above, other than on Form 10-K, Form 10-Q or Form 8-K), unless a copy thereof shall first have been submitted to Grandview the Representatives within a reasonable period of time prior to the filing thereof and Grandview the Representatives shall not have reasonably objected thereto in good faith. (cb) The Company will notify the Underwriters Representatives promptly, and will, if requested, will confirm such notification advice in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effective; , (ii2) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements the Prospectus with respect to the Prospectus Shares or for additional information; , (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv4) of becoming aware of the occurrence happening of any event during the period mentioned in the second sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; misleading and (v5) of receipt by the Company or any representatives or attorney of the Company of any notification with respect other communication from the Commission relating to any suspension of the qualification of Company, the Shares for offer and sale in any jurisdictionRegistration Statement or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (ec) The Company will furnish to the Underwriters and Underwriter CounselRepresentatives, without charge: (i) one conformed copy , three copies of the executed Registration Statement as originally filed with the Commission and each of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), 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. (iid) so long as a prospectus relating The Company will comply with all the provisions of any undertakings contained in the Registration Statement. (e) The Company will deliver to each of the Shares is required to be delivered under the Securities ActUnderwriters, 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, in accordance with the provisions of the Act and with the securities and Blue Sky laws of the jurisdictions in which the Shares are offered by you and the dealers, 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 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) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable Prior to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale public offering of the Shares to by the InvestorsUnderwriters, the Company will cooperate with Grandview the Representatives and Underwriter Counsel counsel to the Underwriters in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Representatives may reasonably request, if any; 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. (ig) During the period of three years commencing on the Closing 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 publicly held 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 apply make generally available to holders of its securities as soon as may be practicable but in no event later than the net proceeds from last day 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 will pay, or reimburse if paid by the Representatives, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to costs and expenses of or (1) the preparation, printing and filing of the Registration Statement and exhibits to it, the Prospectus 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 copies of the Registration Statement, the Prospectus and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered Securities in Shares by the manner set forth in Underwriters or by dealers to whom Shares may be sold, (5) the Prospectus listing of the Shares on the New York Stock Exchange, (6) the registration or qualification of the Shares for offer and sale under the caption “Use securities or Blue Sky laws of Proceeds.” Without such jurisdictions designated pursuant to Section 4(f), including the written consent fees, disbursements and other charges of Grandviewcounsel to the Underwriters in connection therewith, which shall not be unreasonably withheldand the preparation and printing of preliminary, conditioned or delayedsupplemental and final Blue Sky memoranda, no proceeds of (7) counsel to the Offering will be used to pay outstanding loans from officersCompany, directors or stockholders(8) the transfer agent for the Shares and (9) the Accountants. (j) The If this Agreement shall be terminated by the Company pursuant to any of the provisions hereof (otherwise than pursuant to Section 7) or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will use its best efforts reimburse the several Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of counsel to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3Underwriters) years after the Closingreasonably incurred by them in connection herewith. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares shares of Common Stock to facilitate the sale or resale of any of the Shares. (pl) The Company shall, upon will apply the reasonable request net proceeds from the offering and sale of the UnderwritersShares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds." (m) During the period of 90 days commencing at the Closing Date, deliver the Company will not, without the prior written affirmation consent of Painx Xxxbxx Xxxorporated, directly or indirectly, sell, offer to sell, grant any certificate delivered 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 Section 7 prior this Agreement and other than pursuant to any Closing Date following employee benefit plans or Common Share Purchase Plan and Dividend Reinvestment Plan provided, that the Initial Closing DateCompany will not grant options to purchase shares of Common Stock pursuant to such employee benefit plans at a price less than the public offering price. (qn) The Company shall supply Grandview will not, and will cause each of its counselexecutive officers to enter into agreements with the Representatives in the form set forth in Exhibit A to the effect that they will not, at for a period of 90 days after the Company’s costs, with a reasonable number of bound volumes commencement of the public offering materials within a reasonable time after of the ClosingShares, as well as a reasonable number without the prior written consent of commemorative Lucite tombstones as requested by GrandviewPaineWebber 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). (ro) Upon the Closing, the The Company will grant Grandview use its best efforts to have the right Shares approved for listing, subject to notice of first refusal to co-manage any public underwriting issuance, on the New York Stock Exchange on or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following before the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (American States Water Co)

Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows: (a) The Registration Statement has become effectiveCompany will prepare a supplement to the Prospectus setting forth the amount of the Notes covered thereby and the terms thereof not otherwise specified in the Prospectus, the price at which the Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and reallowances, if any, and if Rule 430A is used or such other information as the filing Underwriters and the Company deem appropriate in connection with the offering of the Prospectus is otherwise required under Rule 424(b)Notes, and the Company will timely file the Prospectus (properly completed if Rule 430A has been used), subject such supplement to the prior approval of Grandview, prospectus with the SEC pursuant to Rule 424(b) within under the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Act, but the Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, not file any amendment or supplement amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus Prospectus, unless a copy thereof it shall first have been submitted to Grandview within a reasonable period delivered copies of time prior such amendments or supplements to the filing thereof and Grandview Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement or if the Underwriters shall not have reasonably objected thereto in good faith. (c) The promptly after receipt thereof; the Company will notify immediately advise the Underwriters promptly, and will, if requested, confirm such notification in writing: or the Underwriters' counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement becomes effective; has become or will become effective and (ii) of any request by order or communication suspending or preventing, or threatening to suspend or prevent, the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) offer and sale of the issuance by the Commission of any stop order preventing Notes or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for or examinations that purpose may lead to such an order or the threat thereof; (iv) of becoming aware communication, whether by or of the occurrence of SEC or any event that in the judgment of authority administering any state securities or Blue Sky law, as soon as the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements thereinis advised thereof, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with prevent the provisions issuance of and make all requisite filings with the Commission pursuant to said Rule 430A any such order or communication and to notify the Underwriters promptly of all such filingsobtain as soon as possible its lifting, if issued. (db) If, at any time when a the Prospectus relating to the Shares Notes is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company promptly will promptly notify Grandview and, subject to Section 4(b) hereof, the Representative of such event and will promptly prepare and file with the CommissionSEC, at the Company’s its own expense, an amendment to the Registration Statement or an amendment or supplement to the such Prospectus that corrects will correct such statement or omission or effects an amendment that will effect such compliance compliance. Neither the Representative's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof. (c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes. (d) The Company will deliver furnish to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with (including all documents and exhibits thereto or incorporated by reference therein), the Commission and each amendment thereto, including financial statements and schedulesProspectus, and all exhibits thereto, (ii) so long as a prospectus amendments and supplements to such documents relating to the Shares is required to be delivered under the Securities ActNotes, as many copies of the Prospectus or any amendment or supplement thereto in each case in such quantities as the Underwriters may reasonably request. (e) The Company will cooperate with the Underwriters in listing the Class A Notes on the Irish Stock Exchange. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed cooperate with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, Underwriters and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel their counsel in connection with the registration qualification of, or qualification procurement of exemptions with respect to, the Shares Notes for offer offering and sale by the Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriters may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; provided, 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 suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (ig) The Company will apply consents to the net proceeds from use, in accordance with the offering securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and sale by dealers, of the Offered Securities in Prospectus furnished by the manner set forth in Company. (h) To the Prospectus under extent, if any, that the caption “Use rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of Proceedsdocuments or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds (i) So long as any of the Offering Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be used filed with the SEC pursuant to pay outstanding loans the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from officers, directors or stockholderstime to time. (j) The Company will use its best efforts If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to ensure that any provisions hereof (otherwise than by notice given by the Shares are listed Representative terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Representative because of any failure or refusal on the NASDAQ Capital Market at the time part of the Initial ClosingCompany to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and seeking and using its best efforts to maintain such listing expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for a period loss of at least three (3) years after the Closingprofits or otherwise. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have net proceeds from the responsibility for the preparation sale of the financial statements and Notes hereunder will be applied substantially in accordance with the financial exhibits, if any, to be included description set forth in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectus. (l) The Except as stated in this Agreement and in the Prospectus, the Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agenthas not taken, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Notes to facilitate the sale or resale of any the Notes. (m) For a period from the date of this Agreement until the retirement of the SharesNotes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants' reports furnished to the Indenture Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Indenture Trustee or the Company. (n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the Xxxxt Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Trust Stxxxxt Loans to show the absolute ownership by the Indenture Trustee, as eligible lender of, and the interest of the Company in, the initial Trust Student Loans, and the Company shall not take, or shall not permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Trust Student Loans, other than as permitted by the Basic Documents (o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company or any entity affiliated, directly or indirectly, with the Company. (p) The Company shallIf, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the reasonable request of the Underwriters1933 Act, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date then, immediately following the Initial Closing Dateexecution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted. (q) The Company shall supply Grandview and its counselAs soon as practicable, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time but not later than 16 months after the Closing, as well as a reasonable number date of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingthis Agreement, the Company will grant Grandview make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the right later of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders effective date of the CompanyRegistration Statement, (ii) shares issued in payment the effective date of the consideration for an acquisition most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) conventional banking arrangements and commercial debt financingthe date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeAct.

Appears in 1 contract

Samples: Underwriting Agreement (SLC Student Loan Trust 2005-1)

Agreements of the Company. The (a) Subject to the terms and conditions hereof, including Section 6(c)(iii), prior to and during the Plan Support Period, the Company covenants and agrees with the Underwriters as followsthat it shall, without limitation: (ai) The Registration Statement has become effective(A)(1) complete and file, within the timeframes contemplated herein, the Plan, the Disclosure Statement, and if Rule 430A is used or the filing other Definitive Documents and (2) use commercially reasonable efforts to obtain entry by the Bankruptcy Court of the Prospectus is otherwise required under Rule 424(b)DIP Orders, the Company will file Disclosure Statement Order, and the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) Confirmation Order within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering timeframes contemplated by this Agreement; and (B) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring embodied in the Plan, file any amendment or supplement if any, and solely to the Registration Statement or extent necessary to effectuate the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith.Restructuring; (c) The Company will notify the Underwriters promptly, and will, if requested, confirm such notification in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) continue to operate its businesses without material change in such operations or disposition of any request material assets (in each case, unless the Consenting Lenders have expressly consented thereto in writing) in accordance with its business judgment, and confer with the Consenting Lenders and their respective representatives, as reasonably requested, to report on operational matters and the general status of ongoing operations. For the avoidance of doubt, Consenting Lenders hereby consent to the reduction in force implemented by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; Company on November 22, 2017; (iii) (A) support and take all reasonable actions necessary or reasonably requested by the Consenting Lenders to facilitate the solicitation, confirmation, and consummation of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration StatementRestructuring, the Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (d) If, at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedulesPlan, and all exhibits theretothe transactions contemplated thereby, (iiB) so long as a prospectus relating to the Shares not take any action directly or indirectly that is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Actinconsistent with, or that would otherwise constitute reasonably be expected to prevent, interfere with, delay, or impede the approval of the Disclosure Statement, the solicitation of votes on the Plan, and the confirmation and consummation of the Plan and the Restructuring, including soliciting, causing, or allowing any of its agents or representatives to solicit any agreements relating to any chapter 11 plan or restructuring transaction (including, for the avoidance of doubt, a “free writing prospectus,” as defined in Rule 405 promulgated transaction premised on an asset sale of substantially all of the Company’s assets under section 363 of the Securities Act, required to be filed with Bankruptcy Code) other than the Commission. Any such free writing prospectus consented to by Grandview Restructuring (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under Alternative Transaction”), except without the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale express written consent of the Shares to the InvestorsConsenting Lenders and (C) (x) not, the Company will cooperate with Grandview and Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably requestnor encourage any other person to, if any; 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, or would subject it reasonably be expected to, breach or be inconsistent with this Agreement or delay, impede, appeal, or take any other negative action, directly or indirectly, or encourage any other entity to general service interfere with the acceptance or implementation of process the Restructuring, and (y) in the event any jurisdiction where it is not now so subject.other person takes any action described in the preceding clause (x), take all steps reasonably necessary to affirmatively contest such action and/or object thereto, including, without limitation, timely filing a formal written response in opposition thereto with the Bankruptcy Court; (iiv) The Company will apply the net proceeds from the offering (A) provide (x) draft copies of all first day motions or applications and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure other documents that the Shares are listed Company intends to file with the Bankruptcy Court on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of Petition Date at least three (3) years calendar days prior to the Petition Date, and (y) draft copies of all other material motions and applications that the Company intends to file with the Bankruptcy Court after the Closing. (k) The Company shall retain a firm of independent certificate public accountantsPetition Date, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if anyin each case, to be included in counsel to the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of Consenting Lenders at least three (3) years after calendar days prior to the Closing. (l) The date on which the Company intends to file such documents, provided, that where exigent circumstances may require the filing of such motion or application on an expedited basis, such draft copies shall retain a transfer agent for be provided within such period as may be reasonable in such circumstances. In any event, final filing versions of such documents shall be reasonably acceptable, in form and substance, to the Company’s Common Stock Consenting Lenders or otherwise amended to be reasonably acceptable, in form and continue substance, to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Consenting Lenders upon the Company shall engage a financial public relations firm receiving notice that any final filing versions were not reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.Consenting Lenders;

Appears in 1 contract

Samples: Restructuring Support Agreement (Patriot National, Inc.)

Agreements of the Company. The Company covenants and agrees with the several U.S. Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event event, including the filing of any information, documents or reports pursuant to the Exchange Act, that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectuses (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the time. (c) The Company has omitted any information from will furnish to you, without charge, four signed copies of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the Registration Statement and will also furnish to notify you, without charge, such number of conformed copies of the Underwriters promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request. (d) If, at The Company will not (i) file any time when a Prospectus relating amendment to the Shares Registration Statement or make any amendment or supplement to the Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised or (ii) so long as, in the written opinion of counsel for the U.S. Underwriters (a copy of which shall be delivered to the Company), a prospectus is required to be delivered under in connection with sales by any U.S. Underwriter or dealer, file any information, documents or reports pursuant to the Securities Exchange Act, without delivering a copy of such information, documents or reports to you, as Representatives of the U.S. Underwriters, prior to or concurrently with such filing. (e) Prior to the execution and delivery of this Agreement, the Company becomes aware has delivered or will deliver to you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the occurrence U.S. Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by dealers, prior to the date of the U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the U.S. Underwriters a U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer, the Company will expeditiously deliver to each U.S. Underwriter and each dealer, without charge, as many copies of the U.S. Prospectus (and of any event amendment or supplement thereto) as a result you may reasonably request. The Company consents to the use of the U.S. Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the ProspectusShares are offered by the several U.S. Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the written opinion of counsel for the U.S. Underwriters is required to be set forth in the U.S. Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make supplement or amend the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the U.S. Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the Commission, at the Company’s expense, Commission an appropriate supplement or amendment thereto and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance U.S. Underwriters and will deliver to the Underwriters, without charge, such dealers a reasonable number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementthereof. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the U.S. Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several U.S. Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act. (i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission or NASDAQ, and (ii) from time to time such other information concerning the Company as you may reasonably request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the U.S. Underwriters because of any failure or refusal on the part of the Company to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the U.S. Underwriters) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares to be sold by it hereunder substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectuses. (l) The If Rule 430A of the Act is employed, the Company shall retain a transfer agent for will timely file the Company’s Common Stock Prospectuses pursuant to Rule 424(b) under the Act and continue to retain will advise you of the time and manner of such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for For a period of two (2) years 180 days after the Closingdate hereof (the "Lock-up Period"), the Company will not, without the prior written consent of Xxxxx Xxxxxx Inc., offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock, except for sales to the U.S. Underwriters pursuant to this Agreement and the Managers pursuant to the International Underwriting Agreement and for options or awards of the Company's Common Stock granted in accordance with the QAD Inc. 1997 Stock Incentive Program. (n) The Company shall register with the Corporation Records Service published has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by Standard & Poor’s Corporation each of its current executive officers and covenant to maintain such registration for a period directors and each of three (3) years from the Closingits stockholders previously designated by you. (o) The Except as stated in this Agreement and in the International Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Common Stock to facilitate the sale or resale of any of the Shares. (p) The Company shallwill use its best efforts to have the Common Stock listed, upon subject to notice of issuance, on the reasonable request Nasdaq National Market concurrently with the effectiveness of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Dateregistration statement. (q) The Company shall supply Grandview and will use its counsel, at best efforts to satisfy on or before the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the ClosingClosing Date or any Option Closing Date, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandviewthe case may be, all conditions to the U.S. Underwriters' obligations to purchase the Shares. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: u.s. Underwriting Agreement (Qad Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters ------------------------- as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares Securities by an underwriter the Underwriters or dealer in connection with the offering contemplated by this Agreementa dealer, file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Underwriters within a reasonable period of time prior to the filing thereof and Grandview the Underwriters shall not have reasonably objected thereto in good faith. (cb) The Company will notify the Underwriters promptly, and will, if requested, will confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; , (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of becoming aware of the occurrence happening of any event during the period mentioned in the second sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; misleading and (v) of receipt by the Company or any representative or attorney of the Company of any notification with respect other communication from the Commission relating to the Company, the Registration Statement, any suspension of preliminary prospectus or the qualification of the Shares for offer and sale in any jurisdictionProspectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the The Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it 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 Underwriters promptly of all such filings. (c) The Company has furnished, or will furnish, to the Underwriters, without charge, two conformed copies of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus). (d) IfThe Company will comply with all the provisions of any undertakings contained in the Registration Statement. (e) On the Effective Date, at any and thereafter from time when a Prospectus relating to time, the Company will deliver to the Shares 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 Underwriters and by all dealers to whom the Securities may be sold, both in connection with the offering or sale of the Securities and for any period of time thereafter during which the Prospectus is required by law to be delivered under in connection therewith. If during such period of time any event shall occur that in the Securities Act, judgment of the Company becomes aware of the occurrence of any event as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Underwriters should be set forth in the Prospectus in order to make the statements any statement therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were it was made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel necessary to the Company supplement or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationslaw, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly forthwith prepare and duly file with the CommissionCommission an appropriate supplement or amendment thereto, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to shall not file any document under the use Exchange Act before the termination of the Prospectus or any amendment or supplement thereto offering of the Securities by the Underwriters. (e) The Company will furnish Underwriters if such document would be deemed to be incorporated by reference into the Prospectus and if such document is not approved by the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably requestafter reasonable notice thereof. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent Prior to any public offering of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under by the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the InvestorsUnderwriters, the Company will cooperate with Grandview the Underwriters and Underwriter Counsel the Underwriters' counsel in connection with the registration or qualification of the Shares Securities for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriters may reasonably request, if any; 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. (ig) During the period of five years commencing on the date of the Price Determination Agreement, 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. (h) The Company will apply make generally available to holders of its securities as soon as may be practicable but in no event later than the net proceeds from last day of the fifteenth full calendar month following the calendar quarter in which the "effective date of the Registration Statement" (as defined in Rule 158 of the Rules and Regulations) falls, an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after such "effective date of the Registration Statement," 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 will pay, or reimburse if paid by the Underwriters, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, 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, the Prospectus, any amendment or supplement to the Registration Statement or the Prospectus and the Indenture, (ii) the preparation and delivery of certificates representing the Securities, (iii) the printing of this Agreement and any Dealer Agreements, (iv) furnishing (including costs of shipping, mailing and courier) 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 Offered Securities by the Underwriters or by dealers to whom Securities may be sold, (v) 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, (vi) the manner set forth in registration or qualification of the Prospectus Securities for offer and sale under the caption “Use securities or Blue Sky laws of Proceeds.” Without such jurisdictions designated pursuant to Section 4(f), including the written consent fees, disbursements and other charges of Grandviewcounsel to the Underwriters in connection therewith, which shall not be unreasonably withheldand the preparation and printing of preliminary, conditioned or delayedsupplemental and final Blue Sky memoranda, no proceeds (vii) counsel to the Company, (viii) the transfer agent and registrar for the Securities, (ix) the rating of the Offering will be used to Securities by one or more rating agencies, (x) the Trustee and any agent of the Trustee and the fees, disbursements and other charges of counsel for the Trustee in connection with the Indenture and the Securities and (xi) the Accountants. Except as otherwise provided in this Section 4, the Underwriters shall pay outstanding loans from officers, directors or stockholdersall of their own costs and expenses. (j) The If this Agreement shall be terminated by the Company pursuant to any of the provisions hereof or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will use its best efforts reimburse the Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of counsel to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3Underwriters) years after the Closingreasonably incurred by it in connection herewith. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any time, directly or indirectly, take any action intended, or which that might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the Shares Securities to facilitate the sale or resale of any of the SharesSecurities. (pl) The Company shall, upon will apply the reasonable request net proceeds from the offering and sale of the Underwriters, deliver written affirmation Securities in the manner set forth in the Prospectus under "Use of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateProceeds." (qm) The Company shall supply Grandview and its counsel, at will not claim the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager benefit of any such offering. If Grandview fails to accept in writing usury law against any such proposal for such public or private sale within 20 days after receipt holders of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeSecurities.

Appears in 1 contract

Samples: Underwriting Agreement (Oneok Inc /New/)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject endeavor to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to cause the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof become effective and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify advise the Underwriters promptly, and will, if requested, requested by the Underwriters will confirm such notification advice in writing: , (i) when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement it becomes effective; , and of the filing of any final prospectus or supplement or amendment to the Prospectus, (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; Prospectus, (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Notes for offering or sale in any jurisdiction, or the initiation or contemplation known to the Company of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iv) within the period of becoming aware time referred to in paragraph (f) below, of the occurrence happening of any event that in the judgment of the Company which makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light therein not misleading or of the circumstances in which they are made, not misleading; and (v) of receipt by necessity to amend or supplement the Company of Prospectus to comply with the Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Notes, the Company has omitted complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. (b) If, at the time that the Registration Statement becomes effective, any information from shall have been omitted therefrom in reliance upon Rule 430A under the Act, then following the execution of the Pricing Agreement, the Company will prepare and file with the Commission in accordance with Rule 430A and Rule 424(b) under the Act copies of an amended Prospectus, or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted. (c) The Company will furnish to each of the Underwriters, without charge, one signed copy of the Registration Statement and of each amendment thereto, including all exhibits thereto, and will also furnish to each of the Underwriters, without charge, such number of conformed copies of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of each amendment thereto and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all such filingsdocuments incorporated therein by references each Underwriter may reasonably request. (d) If, at The Company will not file any time when a Prospectus relating amendment to the Shares Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriters shall not previously have been advised or to which any of the Underwriters promptly after being so advised shall reasonably have objected in writing. (e) Prior to the effective date of the Registration Statement, the Company will deliver to each Underwriter, without charge, copies of each form of prospectus subject to completion in such quantities as such Underwriter has reasonably requested or may hereafter reasonably request. The Company consents to the use, prior to the effective date of the Registration Statement, of each prospectus subject to completion so furnished by the Company in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Notes are lawfully offered by the several Underwriters and by all dealers. (f) On the effective date of the Registration Statement and thereafter from time to time during such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered under in connection with offers or sales of the Securities ActNotes by an Underwriter or a dealer, the Company becomes aware will deliver to each Underwriter and dealer, without charge, as many copies of the occurrence of Prospectus including all documents from which information is incorporated by reference (and any amendment or supplement thereto) as they may reasonably request. During such period, if any event as a result of occurs which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of the Company, or in the opinions of counsel to for the Company or Underwriter Counseland the Underwriters after discussions among such counsel, include any should be set forth in the Prospectus in order to ensure that the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were madeat the time the Prospectus is delivered to a purchaser, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview andforthwith prepare, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver submit to the Underwriters, file with the Commission and deliver, without charge, such number of copies thereof as charge to the Underwriters may reasonably and dealers (whose names and addresses will be furnished by the Underwriters to the Company) to whom Notes have been sold by the Underwriters or to other dealers upon request, an amendment or supplement, as appropriate (including, if applicable, an appropriate report under the Exchange Act which is incorporated by reference in the Prospectus), to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will comply with the standards set forth in this sentence. The Company consents to the use of such Prospectus (and of any amendments or supplements thereto) in accordance with the Prospectus provisions of the Act and with the securities or any amendment or supplement thereto Blue Sky laws of the jurisdictions in which the Notes are lawfully offered by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counselby all dealers to whom Notes may be sold, without charge: (i) one conformed copy both in connection with the offering or sale of the Registration Statement Notes and for such period of time thereafter as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating Prospectus is required by law to the Shares be delivered in connection therewith. In case any Underwriter is required to be delivered under deliver a Prospectus more than nine months after the Securities Actfirst date upon which the Notes are offered to the public, as many copies the Company will, upon request but at the expense of such Underwriter, furnish such Underwriter with reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration StatementAct. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview the Underwriters and Underwriter Counsel counsel for the Underwriters in connection with the registration or qualification of the Shares Notes for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriters may reasonably request, if anydesignate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, 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 the service of process in suits, other than those arising out of the offer and sale of the Notes, in any jurisdiction where it is not now so subject, or to take any action to amend its Certificate of Incorporation in order to make the Company's securities eligible for registration or qualification in any jurisdiction. (h) The Company will make generally available to its security holders an earnings statement of the Company and its subsidiaries, which need not be audited, as soon as practicable but not later than 18 months after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including Rule 158). (i) So long as any Notes are outstanding the Company will furnish: (i) to its Noteholders generally and to the Underwriters (A) at such time after the end of each fiscal year as provided in this Indenture, copies of such financial statements of the Company as of the end of and for such fiscal year, audited by independent public accountants, as are specified in the Indenture and (B) at such time after the end of each quarterly fiscal period, except for the last quarterly fiscal period in each fiscal year, such financial statements (which need not be audited) of the Company for such period as are specified in the Indenture, which shall also be made publicly available; and (ii) to the Underwriters (A) as soon as available, a copy of each report of the Company of general interest mailed to any class of its security holders, (B) copies of all annual reports, quarterly reports and current reports on Forms 10-K, 10-Q and 8-K or such other similar forms as may be designated by the Commission or required to be filed by the Company pursuant to Sections 13, 14 and 15 of the Exchange Act, which the Company agrees to timely file with the Commission for so long as may be required for the distribution of the Notes, (C) a copy of each report required to be filed with the Trustee pursuant to the Indenture concurrently with such filing, and (D) from time to time, such other information concerning the Company as any Underwriter may reasonably request. If and so long as the Company shall have any subsidiaries, the financial statements referred to above shall be consolidated to the extent the accounts of the Company and such subsidiaries are consolidated, and separate financial statements shall be furnished for each significant subsidiary, as defined in Regulation S-X of the Commission, whose accounts are not so consolidated. (j) Prior to the Closing Date, the Company will issue no press release or other public communication and hold no press conference with respect to the Company's offering of the Notes without the Underwriters' prior written consent, which consent will not be unreasonably withheld. (k) The Company will pay, or reimburse if paid by the Underwriters, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance by it of its obligations under this Agreement and the Pricing Agreement, including, without limiting the generality of the foregoing, (i) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Notes, (ii) the fees charged by rating agencies in connection with any rating of the Notes, and (iii) all costs of typesetting, printing, duplicating and filing (and all preparation therefor) and all costs of distribution (including, without limitation, postage, air freight charges and charges for counting and packaging) of the registration statement as originally filed, the Registration Statement, each prospectus subject to completion, the Prospectus, each amendment and/or supplement to any of them, this Agreement, the Pricing Agreement, the Indenture, any Selected Dealers Agreement, and all related documents, (iv) all costs, as applicable, of furnishing to the Underwriters and dealers copies of the foregoing materials (provided, however, that any such copies furnished by the Company more than nine months after the first date upon which the Notes are offered to the public shall be at the expense of the Underwriters or dealers so requesting as provided in Section 5(f) above), (v) all costs of the registrations or qualifications referred to in Section 5(g) above (including reasonable fees of counsel in connection therewith), (vi) all costs of filings made by the Underwriters with the National Association of Securities Dealers, Inc. in connection with the offering of the Notes, (vii) all costs of the performance by the Company of its other obligations under this Agreement, including the fees of Company counsel and accountants, (viii) all costs of the issuance, sale, delivery and performance of the Notes, including any transfer or other taxes payable in connection with the original issuance of the Notes, and (ix) all costs of furnishing to the Underwriters copies of all reports and information required by Section 5(i) above, including costs of shipping and mailing. (l) If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than by notice given by the Underwriters terminating this Agreement pursuant to Section 9 or Section 10 hereof), or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all documented reasonable out-of-pocket expenses including reasonable legal fees and expenses incurred by them in connection herewith but without any further obligation of the Company for lost profits or otherwise. If this Agreement is terminated pursuant to Section 9 or Section 10 hereof, the Underwriters shall themselves bear any such out-of-pocket expenses incurred by them. (m) The Company will apply the net proceeds from the offering and sale of the Offered Securities in Notes to be sold by it under this Agreement and the manner Pricing Agreement for the purposes set forth in the Prospectus under the caption "Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing." (n) The Company shall register will comply with all registration, filing and reporting requirements of the Corporation Records Service published by Standard & Poor’s Corporation and covenant Exchange Act which may from time to maintain such registration for a period of three (3) years from time be applicable to the ClosingCompany. (o) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization comply with all provisions of the price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale all undertakings contained in any such noticethe Registration Statement.

Appears in 1 contract

Samples: Underwriting Agreement (St Paul Bancorp Inc)

Agreements of the Company. The Company understands, covenants ------------------------- and agrees with the Underwriters Placement Agent as follows: (a) The Registration Statement has become effectiveCompany shall not, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject either prior to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, Effective Date or thereafter during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares Securities by an underwriter or dealer in connection with the offering contemplated by this Agreementdealer, file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Placement Agent within a reasonable period of time prior to the filing thereof and Grandview the Placement Agent shall not have reasonably objected thereto in good faith. (cb) The Company will shall use its best efforts to cause the Registration Statement to become effective, and shall notify the Underwriters Placement Agent promptly, and will, if requested, shall confirm such notification advice in writing: , (i1) when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement thereto becomes effective; , (ii2) of any request by the Commission securities or other governmental authority (including, without limitation, the Commission) of any jurisdiction for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii3) of the issuance by any securities or other governmental authority (including, without limitation, the Commission Commission) of any jurisdiction of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv4) of becoming aware of the occurrence happening of any event during the period mentioned in Section 6(a) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; misleading and (v5) of receipt by the Company or any agent or attorney of the Company of any notification with respect other communication from the securities or other governmental authority (including, without limitation, the Commission) of any jurisdiction relating to any suspension of the qualification of Registration Statement, any Preliminary Prospectus or the Shares for offer and sale in any jurisdictionProspectus. If at any time any securities or other governmental authority (including, without limitation, the Commission Commission) of any jurisdiction shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will shall make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will shall 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 Underwriters Placement Agent promptly of all such filings. (dc) If, at any time when a Prospectus relating to the Shares Securities is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counselcounsel to the Placement Agent, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will shall promptly notify Grandview the Placement Agent and, subject to Section 4(b6(a) hereof, will shall promptly prepare and file with the Commission, at the Company’s 's expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will shall deliver to the UnderwritersPlacement Agent, without charge, such number of copies thereof as the Underwriters Placement Agent may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the UnderwritersPlacement Agent. (ed) The Company will shall furnish to the Underwriters Placement Agent and Underwriter Counselits counsel, without charge: , (i) one conformed signed copy of the Registration Statement as originally filed with the Commission registration statement described in Section 3(a) hereof and each pre-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, thereto and (ii) so long as a prospectus relating to the Shares Securities is required to be delivered under the Securities Act, as many copies of each Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Underwriters Placement Agent may reasonably request. (fe) The Company will shall comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (hf) Prior to the sale of the Shares Securities to the Investors, the Company will shall cooperate with Grandview the Placement Agent and Underwriter Counsel its counsel in connection with the registration or qualification of the Shares Securities for offer and sale under the state securities or Blue Sky blue sky laws of such jurisdictions as Grandview the Placement Agent may reasonably request, if any; 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. (ig) The Company will apply shall make generally available to holders of its securities, as soon as may be practicable, but in no event later than the net proceeds from the offering and sale last day of the Offered Securities fifteenth full calendar month following the calendar quarter in which the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of GrandviewEffective Date falls, a consolidated earnings statement (which shall need not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will audited but shall be used to pay outstanding loans from officers, directors or stockholders. (jin reasonable detail) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years 12 months ended commencing after the ClosingEffective Date, and satisfying the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). (kh) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will shall constitute, stabilization of the price of the Shares Securities to facilitate the sale or resale of any of the SharesSecurities. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (qi) The Company shall supply Grandview apply the net proceeds from the offering and its counselsale of the Securities in the manner set forth in the Prospectus under the caption "Use of Proceeds." (j) The Placement Agent may not, at without the Placement Agent's prior consent, be quoted or referred to in any document, release or communication prepared, issued or transmitted by the Company’s costs, with a reasonable number of bound volumes of including any entity controlled by, or under common control with, the public offering materials within a reasonable time after the ClosingCompany and any director, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandviewofficer, employee or agent thereof. (rk) Upon Following the Closing, the Company will grant Grandview Placement Agent shall have the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales place usual and customary advertisements in financial and other newspapers and journals, at its own expense, describing its services to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Placement Agency Agreement (SFBC International Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters you as ------------------------- follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of Company will cause the Prospectus is otherwise Supplement to be filed as required under Rule 424(b), by Section 3(a) hereof (but only if you have not reasonably objected thereto by notice to the Company will file the Prospectus (properly completed if Rule 430A has after having been used), subject furnished a copy within a reasonable time prior to the prior approval of Grandview, pursuant to Rule 424(bfiling) within the prescribed time period and will provide a copy notify you promptly of such filing to Grandview promptly following such filing. (b) . The Company will not, not during such period as the Prospectus would be is required by law to be delivered in connection with sales of the Shares by an underwriter any Underwriter or dealer in connection with the offering contemplated by this Agreementdealer, file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Underwriters within a reasonable period of time prior to the filing thereof and Grandview the Underwriters shall not have reasonably objected thereto in good faith. (cb) The Company will notify the Underwriters you promptly, and will, if requested, will confirm such notification advice in writing: , (i1) when any post-effective amendment to the Registration Statement becomes effective; , (ii2) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv4) of becoming aware of the occurrence happening of any event during the period mentioned in the second sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; misleading and (v5) of receipt by the Company or any representative or attorney of the Company of any notification with respect other communication from the Commission relating to the Company, the Registration Statement, any suspension of Preliminary Prospectus or the qualification of the Shares for offer and sale in any jurisdictionProspectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the . (c) The Company has omitted any information from will furnish to you without charge two signed copies of the Registration StatementStatement and of any post-effective amendment thereto, pursuant including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to Rule 430A, it will use its best efforts to comply with be incorporated by reference into the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Underwriters promptly of all such filingsProspectus). (d) If, at any time when a Prospectus relating to The Company will comply with all the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence provisions of any event as a result of which the Prospectus, as then amended or supplemented, would, undertakings contained in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the . (e) The Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwritersyou, without charge, such number as many copies of copies thereof the Prospectus containing the Prospectus Supplement or any amendment or supplement thereto as the Underwriters you may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Underwriters. (e) 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 your counsel 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 furnish forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Underwriters and Underwriter Counselyou, without charge: (i) one conformed copy , such number of the Registration Statement as originally filed with the Commission and each copies of such supplement or amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, Prospectus as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters you may reasonably request. The Company shall not file any document under the Exchange Act before the termination of the offering of the Shares by you if such document would be deemed to be incorporated by reference into the Prospectus to which you reasonably object. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable Prior to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale public offering of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel your counsel in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably requestrequest including, if anywithout limitation, other jurisdictions outside of the United States; 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. (ig) During the period of five years commencing on the date hereof, the Company will furnish to you 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 you a copy of each annual or other report it shall be required to file with the Commission. (h) The Company will apply make generally available to holders of its securities as soon as may be practicable but in no event later than the net proceeds from last day of the fifteenth full calendar month following the end of the Company's current fiscal quarter, an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424 under the Act, 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 will pay, or reimburse if paid by you, all fees, costs and expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to fees, costs and expenses of or relating to (1) the preparation, printing and filing of the Registration Statement and exhibits to it, each Preliminary Prospectus, the Prospectus 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 and any Dealer Agreements, (4) 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 Offered Securities Shares by you or by dealers to whom Shares may be sold, (5) the listing of the Shares on the New York Stock Exchange, (6) filings required to be made by or on behalf of the Company or you, including without limitation filings to be made by the Company with the Commission, and the fees, disbursements and other charges of counsel for the Company in connection therewith, (7) the manner set forth in registration or qualification of the Prospectus Shares for offer and sale under the caption “Use securities or Blue Sky laws of Proceeds.” Without such jurisdictions designated pursuant to Section 4(f), including the written consent reasonable fees, disbursements and other charges of Grandviewcounsel to you in connection therewith, which shall not be unreasonably withheldand the preparation and printing of preliminary, conditioned supplemental and final Blue Sky memoranda, (8) counsel to the Company and any surveyors, engineers, appraisers, photographers, accountants and other professionals engaged by or delayed, no proceeds on behalf of the Offering will Company, (9) the transfer agent and registrar for the Shares, and (10) preparation of slides, overheads and other presentation material to be used in any "road show" or other presentation to pay outstanding loans from officerspotential investors and the hotel, directors travel and other expenses of the Company's employees in connection with any such "road show" or stockholderspresentation. (j) The If this Agreement shall be terminated by the Company pursuant to any of the provisions hereof (otherwise than pursuant to Section 8 hereof) or if for any reason the Company shall be unable to perform its obligations hereunder or thereunder, the Company will use its best efforts to ensure that reimburse you for all out-of-pocket expenses (including the Shares are listed on the NASDAQ Capital Market at the time fees, disbursements and other charges of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3your counsel) years after the Closingreasonably incurred by them in connection herewith. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (pl) The Company shallwill 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 continue to elect to qualify as a "real estate investment trust" under the Code, upon and will use its best efforts to continue to meet the reasonable request requirements to qualify as a "real estate investment trust." (n) The Company will not, and will cause each of its executive officers to enter into agreements with the Underwriters in the form set forth in Exhibit C to the effect that they will not, for a period of 90 days after the --------- commencement of the public offering of the Shares, without the prior written consent of the Underwriters, deliver written affirmation sell, contract to sell or otherwise dispose of any certificate delivered shares of its Common Stock or rights to the Underwriters acquire such shares (other than pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counselemployee stock option plans, at or in connection with other employee incentive compensation arrangements, the Company’s costs's dividend reinvestment plan, with a reasonable number or the issuance of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandviewstock in exchange for property acquired from third parties). (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Avalon Properties Inc)

Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows: (a) The Registration Statement has become effectiveCompany will prepare a supplement to the Prospectus setting forth the amount of the Notes covered thereby and the terms thereof not otherwise specified in the Prospectus, the price at which the Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and reallowances, if any, and if Rule 430A is used or such other information as the filing Underwriters and the Company deem appropriate in connection with the offering of the Prospectus is otherwise required under Rule 424(b)Notes, and the Company will timely file the Prospectus (properly completed if Rule 430A has been used), subject such supplement to the prior approval of Grandview, prospectus with the SEC pursuant to Rule 424(b) within under the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Act, but the Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, not file any amendment or supplement amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus Prospectus, unless a copy thereof it shall first have been submitted to Grandview within a reasonable period delivered copies of time prior such amendments or supplements to the filing thereof and Grandview Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement or if the Underwriters shall not have reasonably objected thereto in good faith. (c) The promptly after receipt thereof; the Company will notify immediately advise the Underwriters promptly, and will, if requested, confirm such notification in writing: or the Underwriters' counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement becomes effective; has become or will become effective and (ii) of any request by order or communication suspending or preventing, or threatening to suspend or prevent, the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) offer and sale of the issuance by the Commission of any stop order preventing Notes or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for or examinations that purpose may lead to such an order or the threat thereof; (iv) of becoming aware communication, whether by or of the occurrence of SEC or any event that in the judgment of authority administering any state securities or Blue Sky law, as soon as the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements thereinis advised thereof, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with prevent the provisions issuance of and make all requisite filings with the Commission pursuant to said Rule 430A any such order or communication and to notify the Underwriters promptly of all such filingsobtain as soon as possible its lifting, if issued. (db) If, at any time when a the Prospectus relating to the Shares Notes is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company promptly will promptly notify Grandview and, subject to Section 4(b) hereof, the Representative of such event and will promptly prepare and file with the CommissionSEC, at the Company’s its own expense, an amendment to the Registration Statement or an amendment or supplement to the such Prospectus that corrects will correct such statement or omission or effects an amendment that will effect such compliance compliance. Neither the Representative's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof. (c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes. (d) The Company will deliver furnish to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with (including all documents and exhibits thereto or incorporated by reference therein), the Commission and each amendment thereto, including financial statements and schedulesProspectus, and all exhibits thereto, (ii) so long as a prospectus amendments and supplements to such documents relating to the Shares is required to be delivered under the Securities ActNotes, as many copies of the Prospectus or any amendment or supplement thereto in each case in such quantities as the Underwriters may reasonably request. (e) [Intentionally omitted]. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed cooperate with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, Underwriters and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel their counsel in connection with the registration qualification of, or qualification procurement of exemptions with respect to, the Shares Notes for offer offering and sale by the Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriters may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; provided, 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 suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (ig) The Company will apply consents to the net proceeds from use, in accordance with the offering securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and sale by dealers, of the Offered Securities in Prospectus furnished by the manner set forth in Company. (h) To the Prospectus under extent, if any, that the caption “Use rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of Proceedsdocuments or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds (i) So long as any of the Offering Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be used filed with the SEC pursuant to pay outstanding loans the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from officers, directors or stockholderstime to time. (j) The Company will use its best efforts If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to ensure that any provisions hereof (otherwise than by notice given by the Shares are listed Representative terminating this Agreement pursuant to Section 8 or Section 9 hereof) or if this Agreement shall be terminated by the Representative because of any failure or refusal on the NASDAQ Capital Market at the time part of the Initial ClosingCompany to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and seeking and using its best efforts to maintain such listing expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for a period loss of at least three (3) years after the Closingprofits or otherwise. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have net proceeds from the responsibility for the preparation sale of the financial statements and Notes hereunder will be applied substantially in accordance with the financial exhibits, if any, to be included description set forth in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectus. (l) The Except as stated in this Agreement and in the Prospectus, the Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agenthas not taken, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Notes to facilitate the sale or resale of any the Notes. (m) For a period from the date of this Agreement until the retirement of the SharesNotes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants' reports furnished to the Indenture Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Indenture Trustee or the Company. (n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the Xxxxt Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Trust Stxxxxt Loans to show the absolute ownership by the Indenture Trustee, as eligible lender of, and the interest of the Company in, the initial Trust Student Loans, and the Company shall not take, or shall not permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Trust Student Loans, other than as permitted by the Basic Documents (o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company or any entity affiliated, directly or indirectly, with the Company. (p) The Company shallIf, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the reasonable request of the Underwriters1933 Act, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date then, immediately following the Initial Closing Dateexecution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted. (q) The Company shall supply Grandview and its counselAs soon as practicable, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time but not later than 16 months after the Closing, as well as a reasonable number date of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingthis Agreement, the Company will grant Grandview make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the right later of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders effective date of the CompanyRegistration Statement, (ii) shares issued in payment the effective date of the consideration for an acquisition most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) conventional banking arrangements and commercial debt financingthe date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeAct.

Appears in 1 contract

Samples: Underwriting Agreement (SLC Student Loan Receivables I Inc)

Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows: (a) The Registration Statement has become effectiveCompany will prepare a supplement to the Prospectus setting forth the amount of the Notes covered thereby and the terms thereof not otherwise specified in the Prospectus, the price at which the Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and reallowances, if any, and if Rule 430A is used or such other information as the filing of the Prospectus is otherwise required under Rule 424(b), Underwriters and the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer deem appropriate in connection with the offering contemplated by this Agreementof the Notes , and the Company will timely file such supplement to the prospectus with the SEC pursuant to, and within the time frame provided by, Rule 424(b) under the Act, but the Company will not file any amendment or supplement amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus, or any Free Writing Prospectus to the extent required by Rule 433(d) under the Act, unless a copy thereof it shall first have been submitted to Grandview within a reasonable period delivered copies of time prior such amendments, supplements or Free Writing Prospectus to the filing thereof and Grandview Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement, or if the Underwriters shall not have reasonably objected thereto in good faith. (c) The promptly after receipt thereof; the Company will notify immediately advise the Underwriters promptly, and will, if requested, confirm such notification in writing: or the Underwriters’ counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement becomes effective; has become or will become effective and (ii) of any request by order or communication suspending or preventing, or threatening to suspend or prevent, the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; (iii) offer and sale of the issuance by the Commission of any stop order preventing Notes or suspending the effectiveness of the Registration Statement, the Prospectus, or the initiation of any proceedings for or examinations that purpose may lead to such an order or the threat thereof; (iv) of becoming aware communication, whether by or of the occurrence of SEC or any event that in the judgment of authority administering any state securities or Blue Sky law, as soon as the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements thereinis advised thereof, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued. The Company will comply with the provisions of requirements applicable to any “issuer free writing prospectus” (as defined in Rule 433(h)(1) under the Act), including timely filing with the Commission, retention where required and make all requisite filings legending. The Company will timely file with the Commission pursuant any Free Writing Prospectus relating to said Rule 430A information delivered by an Underwriter to the Depositor and to notify the Underwriters promptly Company in accordance with Section 4(d)(ii) of all this Agreement (each such filingsFree Writing Prospectus, an “Assumed Free Writing Prospectus”). (db) If, at any time following the issuance of an “issuer free writing prospectus” or when a the Prospectus relating to the Shares Notes is required to be delivered under the Securities Act, the Company becomes aware of the occurrence of any event occurred or occurs as a result of which such “issuer free writing prospectus” would conflict with the information in the Registration Statement or the Prospectus, or the Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulations, the Company promptly will promptly notify Grandview and, subject to Section 4(b) hereof, the Underwriters of such event and will promptly prepare and file with the CommissionSEC, at the Company’s its own expense, an amendment to the Registration Statement “issuer free writing prospectus” or an amendment or supplement to the such Prospectus that corrects will correct such statement or omission or effects an amendment that will effect such compliance compliance. Neither the Underwriters’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 8 hereof. (c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes. (d) The Company will deliver furnish to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with (including all documents and exhibits thereto or incorporated by reference therein), the Commission and each amendment theretoProspectus, including financial statements and schedules, the Disclosure Package and all exhibits thereto, (ii) so long as a prospectus amendments and supplements to such documents relating to the Shares is required to be delivered under the Securities ActNotes, as many copies of the Prospectus or any amendment or supplement thereto in each case in such quantities as the Underwriters may reasonably request. (e) The Company will cooperate with the Underwriters in listing the Notes on the Irish Stock Exchange. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed cooperate with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, Underwriters and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview and Underwriter Counsel their counsel in connection with the registration qualification of, or qualification procurement of exemptions with respect to, the Shares Notes for offer offering and sale by the Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview the Underwriters may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; provided, 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 suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (ig) The Company will apply consents to the net proceeds from use, in accordance with the offering securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and sale by dealers, of the Offered Securities in the manner set forth in Disclosure Package and of the Prospectus under furnished by the caption “Use Company. (h) To the extent, if any, that the rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of Proceedsdocuments or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds (i) So long as any of the Offering Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be used filed with the SEC pursuant to pay outstanding loans the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from officers, directors or stockholderstime to time. (j) The Company will use its best efforts If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to ensure that any provisions hereof (otherwise than by notice given by the Shares are listed Underwriters terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the NASDAQ Capital Market at the time part of the Initial ClosingCompany to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and seeking and using its best efforts to maintain such listing expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for a period loss of at least three (3) years after the Closingprofits or otherwise. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have net proceeds from the responsibility for the preparation sale of the financial statements Notes hereunder will be applied substantially in accordance with the descriptions set forth in the Prospectus and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingDisclosure Package. (l) The Except as stated in this Agreement, the Disclosure Package and the Prospectus, the Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agenthas not taken, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Notes to facilitate the sale or resale of any the Notes. (m) For a period from the date of this Agreement until the retirement of the SharesNotes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants’ reports furnished to the Indenture Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Indenture Trustee or the Company. (n) On or before the Closing Date, the Company shall xxxx its accounting and other records, if any, relating to the Trust Student Loans and shall cause the Servicer, SLC and SLC Receivables to xxxx their respective computer records relating to the Trust Student Loans to show the absolute ownership by the Company of, the Trust Student Loans, and the Company shall not take, or shall not permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Trust Student Loans, other than as permitted by the Basic Documents. (o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by private credit student loans; provided, however, that this shall not be construed to prevent the sale of private credit student loans by the Company or any entity affiliated, directly or indirectly, with the Company. (p) The Company shallIf, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the reasonable request of the Underwriters1933 Act, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date then, immediately following the Initial Closing Dateexecution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted. (q) The Company shall supply Grandview and its counselAs soon as practicable, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time but not later than 16 months after the Closing, as well as a reasonable number date of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closingthis Agreement, the Company will grant Grandview make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the right later of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders effective date of the CompanyRegistration Statement, (ii) shares issued in payment the effective date of the consideration for an acquisition most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) conventional banking arrangements and commercial debt financingthe date of the Company’s most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such noticeAct.

Appears in 1 contract

Samples: Underwriting Agreement (SLC Private Student Loan Trust 2006-A)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filing. (b) The Company will not, either prior to the date on which the Registration Statement is declared effective (the "Effective Date") or thereafter during such period as the Prospectus would be is required by law to be delivered in connection with sales sale of the Shares by an underwriter Underwriter or dealer in connection with the offering contemplated by this Agreementdealer, file any amendment or supplement to the Registration Statement or the Prospectus Prospectus, unless a copy thereof shall first have been submitted to Grandview the Representative within a reasonable period of time prior to the filing thereof and Grandview the Representative shall not have reasonably objected thereto in good faith. (cb) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriters Representative and its counsel promptly, and will, if requested, will confirm such notification advice in writing: , (i) when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement thereto becomes effective; , (ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Prospectus or for additional information; , (iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, the Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of becoming aware of the occurrence happening of any event during the period mentioned in the second sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the 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 notification with respect other communication from the Commission relating to the Company, the Registration Statement, any suspension of Preliminary Prospectus, or the qualification of the Shares for offer and sale in any jurisdictionProspectus. If at any time the Commission shall issue issues any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, Statement pursuant to Rule 430A430A of the Rules and Regulations, it 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 Underwriters Underwriter promptly of all such filings. (c) The Company will furnish to the Representative or its counsel, without charge, two signed copies of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Representative, without charge, for transmittal to each of the Underwriters, a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits. (d) If, at any time when a Prospectus relating to The Company will comply with all the Shares is required to be delivered under the Securities Act, the Company becomes aware of the occurrence provisions of any event as a result of which the Prospectus, as then amended or supplemented, would, undertakings contained in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement. (e) As soon as practicable after the Effective Date, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any and thereafter from time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationstime, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the each of Underwriters, without charge, such number as many copies of copies thereof the Prospectus or any amendment or supplement thereto as the Underwriters Representative may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the several Underwriters and Underwriter Counselby all dealers to whom the Shares may be sold, without charge: (i) one conformed copy of the Registration Statement as originally filed both in connection with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus offering or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to the Investors, the Company will cooperate with Grandview and Underwriter Counsel be delivered in connection with the registration or qualification therewith. If during such period of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as Grandview may reasonably request, if any; provided, that in no time any event shall the Company be obligated to qualify to do business occur that, 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. (i) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any 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 price of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.the

Appears in 1 contract

Samples: Underwriting Agreement (Columbia Bancorp \Or\)

Agreements of the Company. The Company covenants and agrees with the several U.S. ------------------------- Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, the Prepricing Prospectuses or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose or such purpose; and (iii) within the threat thereof; period of time referred to in paragraph (ivf) of becoming aware below, of the occurrence happening of any event that in the judgment of the Company which makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and (v) of receipt by necessity to amend or supplement the Company of Prospectuses to comply with the Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the time. (c) The Company has omitted any information from will furnish to you, without charge, four signed copies of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to said Rule 430A you, without charge, such number of conformed copies of the Registration Statement as originally filed and to notify the Underwriters promptly of all such filingseach amendment thereto, but without exhibits, as you may request. (d) If, at The Company will not (i) file any time when a Prospectus relating amendment to the Shares Registration Statement or make any amendment or supplement to the Prospectuses of which you shall not previously have been advised or to which you shall object after being so advised or (ii) so long as, in the written opinion of counsel for the U.S. Underwriters, a prospectus is required to be delivered under in connection with sales by any U.S. Underwriter or dealer, file any information, documents or reports pursuant to the Securities Exchange Act, without delivering a copy of such information, documents or reports to you, as Representatives of the U.S. Underwriters, prior to or concurrently with such filing. (e) Prior to the execution and delivery of this Agreement, the Company becomes aware has delivered to you, without charge, in such quantities as you have requested, copies of each form of the occurrence U.S. Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by dealers, prior to the date of the U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the U.S. Underwriters a prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer, the Company will expeditiously deliver to each U.S. Underwriter and each dealer, without charge, as many copies of the U.S. Prospectus as you may request. The Company consents to the use of the U.S. Prospectus in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer. If during such period of time any event as a result of which the Prospectus, as then amended or supplemented, would, shall occur that in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement in the opinion of a material fact counsel for the U.S. Underwriters is required to be set forth in the U.S. Prospectus or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make supplement or amend the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the U.S. Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the Commission, at the Company’s expense, Commission an appropriate supplement or amendment thereto and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance U.S. Underwriters and will deliver to the Underwriters, without charge, such dealers a reasonable number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementthereof. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the U.S. Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several U.S. Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act. (i) During the period of five years after the date of this Agreement, the Company will (i) make generally available a copy of each report of the Company mailed to stockholders or filed with the Commission or the Nasdaq National Market and will promptly notify you of such mailing or filing and (ii) furnish to you from time to time such other information concerning the Company and its Subsidiaries as you may request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the U.S. Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the U.S. Underwriters) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectuses. (l) The If Rule 430A of the Act is employed, the Company shall retain a transfer agent for will timely file the Company’s Common Stock Prospectuses pursuant to Rule 424(b) under the Act and continue to retain will advise you of the time and manner of such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for For a period of two (2) years 180 days after the Closingdate hereof (the "Lock-up ------- Period"), the Company will not, without the prior written consent of Xxxxx ------ Barney Inc., offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock, except for (i) sales to the U.S. Underwriters pursuant to this Agreement and the Managers pursuant to the International Underwriting Agreement, (ii) the issuance of shares to Adelphia Communications Corporation (the "Parent") in connection with the Adelphia Note Contribution (as defined in the Prospectuses) and (iii) the issuance of shares to the Parent in connection with the Adelphia Share Purchase (as defined in the Prospectuses); (iv) the issuance of options or grants under the Company's Long-Term Incentive Compensation Plan; (v) the issuance of the Adelphia Warrant (as defined in the Prospectuses); (vi) the issuance of the Additional MCI Warrants (as defined in the Prospectuses) required to be issued by the Company in accordance with the Company's agreement with MCImetro Access Transmission Services, Inc.; (vii) the issuance of shares pursuant to the exercise of warrants and options described in clauses (vi), (v) and (vi), the MCI Warrant (as defined in the Prospectuses) and the Xxxxxxx Warrant (as defined in the Prospectuses); (viii) the issuance of Class B Common Stock upon the exercise of outstanding Class B Warrants (as defined in the Prospectuses); and (ix) the issuance of shares upon the conversion of Class B Common Stock. (n) The Company shall register with has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by the Corporation Records Service published by Standard & Poor’s Corporation Parent and covenant to maintain such registration for a period each of three (3) years from the ClosingCompany's stockholders set forth on Schedule II hereto. (o) The Except as stated in this Agreement and in the International Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Common Stock to facilitate the sale or resale of any of the Shares. (p) The Company shallwill use its best efforts to have the Common Stock listed, upon subject to notice of issuance, on the reasonable request Nasdaq National Market concurrently with the effectiveness of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateRegistration Statement. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: u.s. Underwriting Agreement (Hyperion Telecommunications Inc)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followsyou: (a) The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview To advise you promptly following such filing. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing: , (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Prospectus or for additional information; , (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectussuspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of becoming aware this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in or which requires any material respect additions to or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort use its best efforts to obtain the withdrawal or lifting of any such order at the earliest possible moment. If the Company has omitted any information from time. (b) To furnish ___ signed copies of the Registration StatementStatement as first filed with the Commission and of each amendment to it, pursuant including all exhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits but including documents incorporated therein by reference, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A424(b) under the Act; during the period specified in Section 5(d) below, it will not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its best efforts to comply with cause any such amendment to the provisions of and make all requisite filings with the Commission pursuant Registration Statement to said Rule 430A and to notify the Underwriters become promptly of all such filingseffective. (d) IfPrior to 10:00 A.M., at any New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus relating to the Shares prospectus is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or a dealer, the Company becomes aware to furnish in New York City to each Underwriter and any dealer as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, wouldwhich, in the reasonable judgment opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if, in the Registration Statementopinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as then so amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, will not in the light of the circumstances under which they were madewhen it is so delivered, not be misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement so that the Prospectus or the Registration Statement to will comply with the Securities Act or the Rules applicable law, and Regulations, the Company will promptly notify Grandview and, subject to Section 4(b) hereof, will promptly prepare furnish to each Underwriter and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of any dealer as many copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus such Underwriter or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters dealer may reasonably request. (f) The Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company will comply with all shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the undertakings contained in Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) The Company represents To mail and agrees thatmake generally available to its security holders as soon as practicable an earnings statement covering the twelve-month period ending __________, except for 199_ that shall satisfy the Approved FWP, it has not and will not, unless it obtains provisions of Section 11(a) of the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and to advise you in writing when such statement has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulationsbeen so made available. (h) Prior So long as the Shares are outstanding, (i) to make generally available as soon as practicable after the end of each fiscal year to the sale record holders of the Shares a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by independent public accountants and (ii) to make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year. (i) So long as the Shares are outstanding, to furnish to you as soon as available copies of all reports or other communications furnished to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the InvestorsUnderwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the Company will cooperate with Grandview and Underwriter Counsel offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the state securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such jurisdictions as Grandview may reasonably requestregistration or qualification and memoranda relating thereto), if any; provided(v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, that Inc., (vi) all fees and expenses in no event shall connection with the preparation and filing of the registration statement on Form 8-A relating to the Shares and all costs and expenses incident to the listing of the Shares on [the Nasdaq National Market/NYSE/AMEX] [and other national securities exchanges and foreign stock exchanges], (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including the Depository Trust Company), and (ix) all other costs and expenses incident to the performance of the obligations of the Company be obligated to qualify to do business in any jurisdiction where it hereunder for which provision is not now so qualified or to take any action which would subject it to general service of process otherwise made in any jurisdiction where it is not now so subjectthis Section 5(i). (ik) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will To use its best efforts to ensure that [list for quotation the Shares are listed on the NASDAQ Capital Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market] [list, subject to notice of issuance, the Shares on the NYSE/AMEX and to maintain the listing of the Shares on the NYSE/AMEX] for so long as the Securities are outstanding.] (l) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any Preferred Stock of the Company or any warrants, rights or options to purchase or otherwise acquire Preferred Stock of the Company substantially similar to the Shares (other than the Shares), without the prior written consent of a majority of the unaffiliated Representatives. (m) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date [or any Option Closing Date, as the case may be,] and to satisfy all conditions precedent to the delivery of the Shares. (n) If the Registration Statement at the time of the Initial Closingeffectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement and seeking and using its best efforts to maintain pay to the Commission the filing fee for such listing for a period Rule 462(b) Registration Statement at the time of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable filing thereof or to Grandview, which will have the responsibility give irrevocable instructions for the preparation payment of such fee pursuant to Rule 111(b) under the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing. (l) The Company shall retain a transfer agent for the Company’s Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the Closing. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for a period of two (2) years after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the ClosingAct. (o) The Company will not at any timecompany will, 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 price of the Shares to facilitate the sale or resale of for so long as any of the Shares. (p) The Company shallPreferred Stock is outstanding and if, upon in the reasonable request of the Underwriters, deliver written affirmation judgement of any certificate delivered Underwriter, such Underwriter or any of its affiliates (as defined in the Act) is required to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, deliver a prospectus in connection with a reasonable number sales of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding Preferred Stock (i) sales to employees under any compensation or stock option plan approved by periodically amend the shareholders Registration Statement so that the information contained in the Registration Statement complies with the requirements of Section 10(a) of the CompanyAct, (ii) shares issued amend the Registration Statement or amend or supplement the Prospectus when necessary to reflect any material changes in payment of the consideration for an acquisition information provided therein and promptly file such amendment or supplement with the commission, (iii) conventional banking arrangements provide such Underwriter with copies of each amendment or supplement so filed and commercial debt financingsuch other documents, including opinion of counsel and "comfort" letter, as such Underwriter may reasonably request and (iv) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts indemnify such right of first refusalUnderwriter and if applicable, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect contribute to any amount paid or payable by such sale contained Underwriter in any such noticea manner substantially identical to the specified in Section 7 hereof (with appropriate modifications).

Appears in 1 contract

Samples: Underwriting Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)

Agreements of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or any amendment or supplements to the Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose or such purpose; and (iii) within the threat thereof; period of time referred to in paragraph (ivf) of becoming aware of the occurrence below, of any event that change in the judgment condition (financial or other), business, prospects, properties, net worth or results of operations of the Company and the Subsidiaries (as hereinafter defined) taken as a whole, or of the happening of any event, that makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (c) The Company will furnish to you, without charge (i) four signed copies of the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings registration statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the registration statement, (ii) such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (iv) four copies of the exhibits to notify the Underwriters promptly of all such filingsIncorporated Documents. (d) If, at The Company will not file any time when a Prospectus relating amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which, upon filing, becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object. (e) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have requested, copies of each form of the Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, supplement or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus (or to file under the Registration Statement Exchange Act any document that, upon filing, becomes an Incorporated Document) in order to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the CommissionCommission an appropriate supplement or amendment thereto (or to such document), at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will expeditiously furnish to the Underwriters and Underwriter Counseldealers a reasonable number of copies thereof. In the event that the Company and you, without charge: (i) one conformed copy as Representatives of the Registration Statement as originally filed with several Underwriters, agree that the Commission and each amendment theretoProspectus should be amended or supplemented, including financial statements and schedulesthe Company, and all exhibits theretoif requested by you, (ii) so long as will promptly issue a prospectus relating to press release announcing or disclosing the Shares is required matters to be delivered under covered by the Securities Act, as many copies of the Prospectus or any proposed amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementsupplement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 that would subject (h) The Company will make generally available to its security holders a consolidated earnings statement, which would subject it to general service need not be audited, covering a 12-month period commencing after the effective date of process in any jurisdiction where it is the Registration Statement and ending not now so subjectlater than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act. (i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may reasonably request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company or the Selling Shareholders to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares to be sold by it hereunder substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectus. (l) The If Rule 430A of the Act is employed, the Company shall retain a transfer agent for will timely file the Company’s Common Stock Prospectus pursuant to Rule 424(b) under the Act and continue to retain will advise you of the time and manner of such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The Except as provided in this Agreement, the Company shall engage a financial public relations firm reasonably acceptable will not offer, sell, contract to their relations with their security holderssell or otherwise dispose of, and continue to retain such firmdirectly or indirectly, any Common Stock or any securities convertible into, or a comparable firm, exchangeable for Common Stock for a period of two (2) years 90 days after the Closingdate of the Prospectus, without the prior written consent of Smitx Xxxxxx Xxx. (i) in a public offering or (ii) in a private offering, unless (a) such private offering shall occur more than 30 days after the date of the Prospectus, (b) the Company will issue shares of Common Stock in such private offering as full or partial consideration for the acquisition by merger or purchase of assets or businesses, and (c) the recipient of such Common Stock shall agree not to sell, offer to sell, grant any option for the sale of, or otherwise dispose of, such Common Stock for the remaining portion of the 90-day period from the date of the Prospectus. Furthermore, the Company will not grant any options or warrants to purchase Common Stock (or offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities exercisable for Common Stock) except (i) the grant of options pursuant to a benefit plan in effect on the date hereof or (ii) pursuant to clause (ii) of the immediately preceding sentence. (n) The Company shall register with has furnished or will furnish to you 90-day "lock-up" letters, in form and substance satisfactory to you, signed by each of its current officers and directors and each of the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the ClosingSelling Shareholders. (o) The Except as stated in this Agreement and in the Prepricing Prospectus and Prospectus, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Common Stock to facilitate the sale or resale of any of the Shares. (p) The Company shall, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Shaw Group Inc)

Agreements of the Company. The Company covenants and agrees with the several U.S. Underwriters as follows: (a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement has become effective, and if Rule 430A is used or a post-effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or any amendment or supplements to the Prospectus Prospectuses or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's business, assets, condition (financial or the threat thereof; (ivotherwise) or results of becoming aware operations, or of the occurrence happening of any event event, including the filing of any information, documents or reports pursuant to the Exchange Act, that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectuses (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the time. (c) The Company has omitted any information from will furnish to you, without charge, one signed copy of the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings Statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the Registration Statement and will also furnish to notify you, without charge, such number of conformed copies of the Underwriters promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request. (d) If, at The Company will not (i) file any time when a Prospectus relating amendment to the Shares Registration Statement or make any amendment or supplement to the Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised or (ii) so long as, in the written opinion of counsel for the U.S. Underwriters (a copy of which shall be delivered to the Company), a prospectus is required to be delivered under in connection with sales by any U.S. Underwriter or dealer, file any information, documents or reports pursuant to the Securities Exchange Act, without delivering a copy of such information, documents or reports to you, as Representatives of the U.S. Underwriters, prior to or concurrently with such filing. (e) Prior to the execution and delivery of this Agreement, the Company becomes aware has delivered or will deliver to you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the occurrence U.S. Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by dealers, prior to the date of the U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the U.S. Underwriters a U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer, the Company will expeditiously deliver to each U.S. Underwriter and each dealer, without charge, as many copies of the U.S. Prospectus (and of any event amendment or supplement thereto) as a result you may reasonably request. The Company consents to the use of the U.S. Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the ProspectusShares are offered by the several U.S. Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the written opinion of counsel for the U.S. Underwriters is required to be set forth in the U.S. Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make supplement or amend the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the U.S. Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the Commission, at the Company’s expense, Commission an appropriate supplement or amendment thereto and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance U.S. Underwriters and will deliver to the Underwriters, without charge, such dealers a reasonable number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementthereof. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the U.S. Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several U.S. Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act; provided that such -------- requirement shall be deemed satisfied if the Company complies with the provisions of Rule 158 of the Act. (i) During the period of one year hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission or the NASDAQ National Market, and (ii) from time to time such other information concerning the Company as you may reasonably request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the U.S. Underwriters because of any failure or refusal on the part of the Company or any of the Selling Stockholders to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the U.S. Underwriters) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares to be sold by it hereunder substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectuses. (l) The If Rule 430A of the Act is employed, the Company shall retain a transfer agent for will timely file the Company’s Common Stock Prospectuses pursuant to Rule 424(b) under the Act and continue to retain will advise you of the time and manner of such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations with their security holders, and continue to retain such firm, or a comparable firm, for For a period of two (2) years 180 days after the Closingdate hereof (the "Lock-up Period"), the Company will not, without the prior written consent of Xxxxx Xxxxxx Inc., offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock exercisable within the Lock-up Period, except for (i) sales to the U.S. Underwriters pursuant to this Agreement and the Managers pursuant to the International Underwriting Agreement, (ii) transactions disclosed in the Prospectuses or (iii) the grant of options in the ordinary course of business pursuant to the Company's Stock Incentive Plan (provided that any recipient of options exercisable within 180 days of the date hereof shall execute an agreement for the benefit of the U.S. Underwriters not to transfer such options (or shares of Common Stock underlying such options) for the remainder of such 180-day period). (n) The Company shall register with the Corporation Records Service published has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by Standard & Poor’s Corporation each of its current officers and covenant to maintain such registration for a period directors and each of three (3) years from the Closingits stockholders designated by you. (o) The Except as stated in this Agreement and in the International Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will not at any timeit take, directly or indirectly, take any action intended, designed to or which that might reasonably be expected, expected to cause or result in, in stabilization or which will constitute, stabilization manipulation of the price of the Shares Common Stock to facilitate the sale or resale of any of the Shares. (p) The Company shallwill use its best efforts to have the Common Stock listed, upon subject to notice of issuance, on the reasonable request NASDAQ National Market concurrently with the effectiveness of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateRegistration Statement. (q) The Company shall supply Grandview and its counsel, at the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: u.s. Underwriting Agreement (Global Crossing LTD)

Agreements of the Company. The Company covenants and agrees with the several -------------------------- Underwriters as follows: (a) The If, at the time this the Registration Statement has become effective, and if Rule 430A is used or a post- effective amendment thereto to be declared effective before the filing offering of the Prospectus is otherwise required under Rule 424(b)Shares may commence, the Company will file endeavor to cause the Prospectus (properly completed if Rule 430A has been used), subject Registration Statement or such post-effective amendment to the prior approval of Grandview, pursuant to Rule 424(b) within the prescribed time period become effective as soon as possible and will provide a copy of advise you promptly and, if requested by you, will confirm such filing to Grandview promptly following advice in writing, when the Registration Statement or such filingpost-effective amendment has become effective. (b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Grandview within a reasonable period of time prior to the filing thereof and Grandview shall not have reasonably objected thereto in good faith. (c) The Company will notify the Underwriters promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing: (i) when any post-effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or any amendment or supplements to the Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Prospectus, suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of becoming aware operations, or of the occurrence happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company of Act or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdictionother law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebyStatement, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If time. (c) The Company will furnish to you, without charge, (i) three signed copies of the Company has omitted any information from the Registration Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings registration statement as originally filed with the Commission pursuant and of each amendment thereto, including financial statements and all exhibits to said Rule 430A the registration statement, (ii) such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (iv) three copies of the exhibits to notify the Underwriters promptly of all such filingsIncorporated Documents. (d) If, at any time when a Prospectus relating Prior to the end of the period of time referred to in the first sentence of subsection (f) below, the Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised. (e) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have requested, copies of each form of the Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be delivered under set forth in the Securities Act, the Company becomes aware of the occurrence of any event as a result of which the Prospectus, Prospectus (as then amended or supplemented, would, in the reasonable judgment of counsel to the Company ) or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact if it is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, supplement or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with the Securities Act or the Rules and Regulationsany other law, the Company will promptly notify Grandview forthwith prepare and, subject to Section 4(bthe provisions of paragraph (d) hereofabove, will promptly prepare and file with the CommissionCommission an appropriate supplement or amendment thereto, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters. (e) The Company will expeditiously furnish to the Underwriters and Underwriter Counseldealers a reasonable number of copies thereof. In the event that the Company and you, without charge: (i) one conformed copy as Representatives of the Registration Statement as originally filed with several Underwriters, agree that the Commission and each amendment theretoProspectus should be amended or supplemented, including financial statements and schedulesthe Company, and all exhibits theretoif requested by you, (ii) so long as will promptly issue a prospectus relating to press release announcing or disclosing the Shares is required matters to be delivered under covered by the Securities Act, as many copies of the Prospectus or any proposed amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings contained in the Registration Statementsupplement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations. (h) Prior to the sale of the Shares to the Investors, the Company will cooperate with Grandview you and Underwriter Counsel with counsel for the Underwriters in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as Grandview you may reasonably request, if anydesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, 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 suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section ll(a) of the Act. (i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may reasonably request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) incurred by you in connection herewith. (k) The Company will apply the net proceeds from the offering and sale of the Offered Securities Shares substantially in accordance with the manner description set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure that the Shares are listed on the NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing. (k) The Company shall retain a firm of independent certificate public accountants, acceptable to Grandview, which will have the responsibility for the preparation of the financial statements and the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the ClosingProspectus. (l) The If Rule 430A of the Act is employed, the Company shall retain a transfer agent for will timely file the Company’s Common Stock Prospectus pursuant to Rule 424(b) under the Act and continue to retain will advise you of the time and manner of such transfer agent, or a comparable firm, for a period of three (3) years after the Closingfiling. (m) The Company shall engage a financial public relations firm reasonably acceptable will not sell, contract to their relations with their security holders, and continue to retain such firmsell or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or a comparable firmgrant any options or warrants to purchase Common Stock, for a period of two (2) years 90 days after the Closing. (n) The Company shall register with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for a period of three (3) years from the Closing. (o) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization date of the price Prospectus, without the prior written consent of the Shares to facilitate the sale or resale of any of the Shares. (p) The Company shallXxxxx Xxxxxx Inc. except as provided in this Agreement, upon the reasonable request of the Underwriters, deliver written affirmation of any certificate delivered pursuant to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date. (q) The Company shall supply Grandview and its counselCompany's Stock Purchase Plan, at the Company’s costs, Stock Options Plans or in connection with a reasonable number of bound volumes of the public offering materials within a reasonable time after the Closing, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandview. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to other incentive compensation arrangements with employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (Donnelly Corp)

Agreements of the Company. The Company covenants and agrees with the Underwriters as followseach Underwriter: (a) The Registration Statement has become effective, Company shall furnish such information as may be required and if Rule 430A is used otherwise to cooperate in qualifying the Shares for offering and sale under (or otherwise obtaining exemptions from the filing application of) the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Prospectus is otherwise required under Rule 424(b), Shares; provided that the Company will file the Prospectus (properly completed if Rule 430A has been used), subject shall not be required to qualify as a foreign corporation or to consent to the prior approval service of Grandview, pursuant process under the laws of any such jurisdiction (except service of process with respect to Rule 424(bthe offering and sale of the Shares) within the prescribed time period and will provide a copy of such filing to Grandview promptly following such filingwhere it is not presently qualified. (b) The Company will notIf, during such period as at the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by time this AgreementAgreement is executed and delivered, file any it is necessary for a post-effective amendment or supplement to the Registration Statement or to be declared effective before the Prospectus unless a copy thereof shall first have been submitted offering of the Shares may commence, the Company will use its reasonable best efforts to Grandview within a reasonable period of time prior cause such post-effective amendment to become effective as soon as possible and will advise the filing thereof and Grandview shall not have reasonably objected thereto Representative promptly and, if requested by the Representative, will confirm such advice in good faithwriting, when such post-effective amendment has become effective. (c) The Company will notify shall prepare the Prospectus in a form approved by the Underwriters promptlyand file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 5:30 p.m. (New York City time), on June 11, 2021 or on such other day as the parties may mutually agree and willto furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 5:30 p.m. New York City time) on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree to the Underwriters copies of the Prospectus (or of the Prospectus as amended or supplemented if requestedthe Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version transmitted to the Commission for filing via EXXXX, except to the extent permitted by Regulation S-T of the Securities Act. (d) The Company shall advise the Representative promptly and (if requested by the Representative) to confirm such notification advice in writing: (i) , when any post-effective amendment to the Registration Statement becomes effective; effective under the Securities Act. (iie) The Company shall furnish a copy of each proposed Issuer Free Writing Prospectus, if any, to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent will not be unreasonably withheld or delayed) prior to referring to, using or filing with the Commission any Issuer Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto. (f) The Company shall comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable. (g) The Company shall advise the Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by by, the Commission for any amendments to the Registration Statement or any amendment or supplements to the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information; information with respect thereto, (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration StatementStatement or of any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (iv) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and offering or sale in any jurisdiction. If at , or of the initiation or threatening of any time proceedings for any of such purposes and, if the Commission shall or any other government agency or authority should issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated herebysuch order, the Company will to make every reasonable effort to obtain the withdrawal lifting or removal of any such order at as soon as possible, (iii) any examination pursuant to Section 8(e) of the earliest possible moment. If the Company has omitted any information from Securities Act concerning the Registration Statement, pursuant or (iv) if the Company becomes subject to Rule 430A, it will use its best efforts to comply a proceeding under Section 8A of the Securities Act in connection with the provisions public offering of Shares contemplated herein, and make all requisite filings with shall advise the Commission pursuant to said Rule 430A and to notify the Underwriters Representative promptly of all such filings. (d) Ifany proposal to amend or supplement the Registration Statement, at the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, during the time when a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, to file no such amendment or supplement to which the Representative shall reasonably object in writing. (h) The Company becomes aware shall advise the Underwriters promptly of the occurrence of any event as or development known to the Company within the time during which a result of which Prospectus relating to the Prospectus, as then amended Shares (or supplemented, wouldin lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act which, in the reasonable judgment of counsel to the Company Company, (i) would require the making of any change in the Registration Statement, the Prospectus or Underwriter Counselthe Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include any an untrue statement of a material fact or omit to state a material fact necessary in order required to make the statements therein, in the light of the circumstances under which they were made, not misleading, be stated therein or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, necessary at any time to amend or supplement the Prospectus or the Registration Statement Disclosure Package to comply with the Securities Act or the Rules and Regulations, the Company will promptly notify Grandview any law and, subject during such time, to Section 4(b) hereof, will promptly prepare and file furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission, Commission and thereafter promptly furnish at the Company’s expense, an amendment own expense to the Registration Statement or Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that corrects such statement or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Prospectus or any amendment the Disclosure Package as so amended or supplement thereto by supplemented will not, in the Underwriters. (e) The Company will furnish to the Underwriters and Underwriter Counsel, without charge: (i) one conformed copy light of the Registration Statement as originally filed with circumstances when it (or in lieu thereof the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (iinotice referred to in Rule 173(a) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act) is so delivered, as many copies be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request. (f) The Company will comply with all the undertakings information contained in the Registration Statement. (g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, or so that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 promulgated under the Securities Act, required to be filed with Prospectus or the Commission. Any such free writing prospectus consented to by Grandview (including the Approved FWP) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the Securities Act, and has complied and Disclosure Package will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing law. (i) The Company shall file promptly with the Commission where requiredany amendment or supplement to the Registration Statement, legending and record keeping. The Company will retain in accordance with any Preliminary Prospectus, the Rules and Regulations all Permitted Prospectus or any Issuer Free Writing Prospectuses not Prospectus that may, in the reasonable judgment of the Company or the Representative, be required to be filed pursuant to by the Rules and RegulationsSecurities Act or requested by the Commission. (hj) Prior The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation and filing of the Registration Statement, the Preliminary Prospectus and the Prospectus, any Issuer Free Writing Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Prospectus, Issuer Free Writing Prospectus and the Registration Statement and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares to the InvestorsUnderwriters; (iv) the printing (or reproduction) and delivery of this Agreement, the Company will cooperate with Grandview any blue sky memorandum and Underwriter Counsel all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) any expenses and fees for the cost of ratings agencies; (vi) any registration or qualification of the Shares for offer and sale under the state securities or Blue Sky blue sky laws of the several states (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such jurisdictions as Grandview may reasonably requestregistration and qualification and the preparation of the blue sky memorandum); (vii) any filings required to be made with the Commission and FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) all “road show” costs and expenses for the offering (regardless of the form in which the “road show” is conducted), if any; provided, that in no event shall and all costs of the Company and Underwriters’ personnel, including but not limited to, commercial or charter air travel, local hotel accommodations, transportation and other expenses; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) the costs and expenses of causing the Shares to be obligated to qualify to do business eligible for clearance and settlement through DTC; (xi) reasonable and documented out-of-pocket, accountable, bona fide expenses incurred by the Underwriters in any jurisdiction where it is connection with its services under this Agreement, whether or 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. (i) The Company will apply the net proceeds from the offering is consummated, including any fees and sale disbursements of the Offered Securities in Underwriters’ legal counsel; provided that the manner set forth in the Prospectus under the caption “Use of Proceeds.” Without the written consent of Grandview, which Company shall not be unreasonably withheld, conditioned or delayed, no proceeds required to reimburse the fees and disbursements of the Offering will be used to pay outstanding loans from officers, directors or stockholders. (j) The Company will use its best efforts to ensure such legal counsel in excess of $125,000; provided further that the Shares are listed on Company shall not be required to reimburse any fees and expenses in excess of $150,000 in the NASDAQ Capital Market at aggregate; (xii) the time costs and expenses of background investigations; and (xii) all other costs and expenses incident to the Initial Closing, and seeking and using performance by the Company of its best efforts to maintain such listing for a period of at least three (3) years after the Closingobligations hereunder. (k) The Prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, during the time when a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, the Company shall retain furnish a firm of independent certificate public accountants, acceptable copy thereof to Grandview, which will have the responsibility Representative and counsel for the preparation Underwriters and obtain the consent of the financial statements and Representative (which consent shall not be unreasonably withheld or delayed) to the financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closingfiling. (l) The During the period referred to in paragraph (h) above, the Company shall retain a transfer agent for file all such documents in the Company’s Common Stock manner and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after within the Closingtime periods required by the Exchange Act. (m) The Company shall engage a financial public relations firm reasonably acceptable to their relations apply the net proceeds of the sale of the Shares in accordance with their security holdersits statements under the caption “Use of Proceeds” in the Registration Statement, the Prospectus and continue to retain such firm, or a comparable firm, for a period of two (2) years after the ClosingDisclosure Package. (n) The Company shall register make generally available to its security holders as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, an earnings statement complying with the Corporation Records Service published by Standard & Poor’s Corporation and covenant to maintain such registration for provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act) covering a period of three (3) years from 12 months beginning after the Closingeffective date of the Registration Statement. (o) The For a period of 90 days after the date of the Prospectus, the Company will not at (i) offer, pledge, sell, contract to sell, sell any timeoption or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, take or file with the Commission a registration statement under the Securities Act relating to, any action intendedshares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or which might reasonably be expectedpublicly disclose the intention to make any offer, to cause sale, pledge, disposition or result infiling, or which will constitute(ii) enter into any swap or other agreement that transfers, stabilization in whole or in part, any of the price economic consequences of ownership of the Common Stock or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Underwriter, other than (1) the Shares to facilitate the sale or resale be sold hereunder, (2) any shares of any Common Stock of the SharesCompany awarded, issued upon the exercise of options or purchase rights, issued upon vesting of equity awards and/or settlement of other awards granted under the Company’s equity incentive plans, (3) the grant of stock options, restricted stock awards, restrictive stock units or any other awards under the Company’s equity incentive plans, (4) the filing by the Company of registration statements on Form S-8 with respect to benefit plans described in the Registration Statement, the Disclosure Package and the Prospectus, (5) the issuance of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding as of the date hereof and (6) the issuance of restricted stock units and/or pre-funded warrants exercisable for Common Stock pursuant to that certain Confidential Vendor Exclusivity Agreement, dated as of June 9, 2021, by and between the Company and Invicta Watch Company of America, Inc. and that certain Confidential Vendor Exclusivity Agreement, dated as of June 9, 2021, by and between the Company and Famjams Trading LLC. (p) The Company shallwill not take, upon directly or indirectly, without giving effect to activities by the reasonable request Underwriter, as to which the Company makes no representation, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the Underwriters, deliver written affirmation price of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing DateCommon Stock. (q) The Company shall supply Grandview is not and, after giving effect to the offering and its counsel, at the Company’s costs, with a reasonable number of bound volumes sale of the public offering materials within a reasonable time after Shares, will not be an “investment company” as such terms are defined in the ClosingInvestment Company Act of 1940, as well as a reasonable number of commemorative Lucite tombstones as requested by Grandviewamended. (r) Upon the Closing, the Company will grant Grandview the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the Company, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Grandview accepts such right of first refusal, Grandview shall be entitled to no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Grandview fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a written notice from the Company containing such proposal, then Grandview will have not claim or right with respect to any such sale contained in any such notice.

Appears in 1 contract

Samples: Underwriting Agreement (iMedia Brands, Inc.)

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