Agreements of the Company. The Company covenants and agrees with the Placement Agents as follows: (i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing. (ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith. (iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) 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; (4) 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 (5) 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 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 430A 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 Placement Agents promptly of all such filings. (iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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. (v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request. (vi) The Company will comply with all the undertakings contained in the Registration Statement. (vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents. (viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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. (ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject. (xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing. (xii) 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. (xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period. (xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
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 Placement Agents several Underwriters as follows:
(a) The Company will advise you promptly and, if requested by you, will confirm such advice in writing (i) The when the Registration Statement has become effective, and effective (if Rule 430A under the Act is used or the filing not effective as of the Final Prospectus is otherwise required under Rule 424(btime and date of this Agreement) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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; , (2ii) 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 to the Registration Statement or any amendment or supplements to the Final Registration Statement, any Prepricing Prospectus or any Issuer Free Writing the Prospectus or for additional information; , (3iv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 462(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, registration statement or supplement) or to which you have reasonably objected after being so advised, or which is not in compliance with the Act. The Company will prepare and file with the Commission any amendments or supplements to the Registration Statement or Prospectus which, it in the opinion of counsel of the several Underwriters, are reasonably necessary or advisable in connection with the distribution of the Shares by the Underwriters.
(d) The Company has delivered or will use its best efforts deliver to comply 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 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 Placement Agents promptly date of all such filingsthe Prospectus, of each Prepricing Prospectus so furnished by the Company.
(ive) IfAs 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 prior to the Final Prospectus relating 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 Act Prospectus (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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver furnish to the Placement Agentseach Underwriter and to each dealer who has previously requested Prospectuses, without charge, such a reasonable number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretothereof.
(vf) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and counsel for the Placement Agents and their 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 the Placement Agents you may reasonably request; provideddesignate 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, 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.
(xi) The Company will use its best efforts to cause . In each jurisdiction in which the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, any event occurs shall have been qualified 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 statements therein in the light of the circumstances under which they were made at such time not misleadingabove provided, the Company will (i) notify promptly the Representative so that use of the Written Testing-the-Waters Communication may cease until it is amended make and file such statements and reports in each year as are or supplemented; (ii) amend or supplement the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xv) The Company will not, directly or indirectly, without required by 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company will announce the impending release or waiver by press release through a major news services at least two business days before the effective date laws of such release or waiver.jurisdiction. In the event that the 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 Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 five photocopies of 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 430A 424(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; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; 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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents such Underwriter or dealer may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretorequest in writing.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xf) Prior to the sale any public offering of the Shares Shares, to the Investors, the Company will cooperate with you and counsel for the Placement Agents and their counsel Underwriters at the expense of the 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 you may request, to continue such registration or qualification in effect so long as required for distribution of the Placement Agents Shares and to file such consents to service of process or other documents as may reasonably requestbe 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.
(xig) The 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 will is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to cause list for quotation the Shares on the Nasdaq National Market and to be listed for trading on The Nasdaq Capital Market at maintain the time listing of the ClosingShares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(xiij) The To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company will not at prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiik) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusAgreement.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 3 contracts
Samples: Underwriting Agreement (Echostar Communications Corp), Underwriting Agreement (Mci Worldcom Inc), Underwriting Agreement (News America Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents Underwriters as follows:
(ia) 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 the Placement AgentsGrandview, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Grandview promptly following such filing.
(iib) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Agreement, file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents Grandview within a reasonable period of time prior to the filing thereof and the Placement Agents Grandview shall not have reasonably objected thereto in good faith.
(iiic) The Company will notify the Placement Agents Underwriters promptly, and will, if requested, confirm such notification in writing, : (1i) when any post-effective amendment to the Registration Statement becomes effective; (2ii) 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; (3iii) 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; (4iv) 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 (5v) 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents Underwriters promptly of all such filings.
(ivd) If, at any time when the Final a Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Securities Act, 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 counsel to the Placement AgentsUnderwriter 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 counsel to the Placement AgentsUnderwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein 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 counsel to the Placement AgentsUnderwriter Counsel, 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 the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement AgentsUnderwriters, without charge, such number of copies thereof as the Placement Agents Underwriters may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretoUnderwriters.
(ve) The Company will furnish to the Placement Agents Underwriters and their counselUnderwriter Counsel, without charge charge: (ai) 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 (bii) so long as a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Securities Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Underwriters may reasonably request.
(vif) The Company will comply with all the undertakings contained in the Registration Statement.
(viig) 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 “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 without as an “issuer free writing prospectus,” as defined in Rule 433 promulgated under the prior written consent of Securities Act, and has complied and will comply with the Placement Agents.
(viii) 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 Issuer Permitted Free Writing Prospectuses not required to be filed, and timely file and include the appropriate legends as required by filed pursuant to 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.
(ix) 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.”
(xh) Prior to the sale of the Shares to the Investors, the Company will cooperate with the Placement Agents Grandview and their counsel 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 the Placement Agents 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.
(xii) 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 cause ensure that the Shares to be are 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.
(xiik) 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.
(xiiip) The Company will notify promptly shall, upon the Representative if reasonable request of the Company ceases Underwriters, deliver written affirmation of any certificate delivered to be an Emerging Growth Company at any time the Underwriters pursuant to Section 7 prior to any Closing Date following the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up PeriodInitial Closing Date.
(xivq) If The Company shall supply Grandview and its counsel, at any the Company’s costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time following after the distribution of any Written Testing-the-Waters CommunicationClosing, any event occurs as well as a result reasonable number 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 commemorative Lucite tombstones as requested by Grandview.
(r) Upon the statements therein in the light of the circumstances under which they were made at such time not misleadingClosing, 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) notify promptly sales to employees under any compensation or stock option plan approved by 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 correct such statement or omission; and (iii) supply any 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 of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock shareholders of the Company, (ii) shares issued in payment of the “Lockconsideration 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-Up Securities”) accountable expenses allowance, warrant coverage or other investment banking compensation for a period any such offering and shall act as the lead manager of 180 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 date of this Agreement (the “Lock-Up Period”)Company containing such proposal, except then Grandview will have not claim or right 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described such sale contained in the Final Prospectusany such notice.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 3 contracts
Samples: Underwriting Agreement (Green Solutions China, Inc.), Underwriting Agreement (China Green, Inc.), Underwriting Agreement (China Green, Inc.)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause obtain the Shares to be listed for trading on The Nasdaq Capital Market withdrawal or lifting of such order at the time of the Closingearliest possible time.
(xiib) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, To furnish to cause or result in, or which will constitute, stabilization you four signed copies of the price 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 Shares Registration Statement as so filed and of each amendment to facilitate the sale or resale of any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xv) The Company will not, directly or indirectlyit, without the prior written consent of the Placement Agentsexhibits, 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 of the 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectusyou may reasonably request.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 2 contracts
Samples: Underwriting Agreement (Davids Bridal Inc), Underwriting Agreement (Medscape Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents Underwriters as follows:
(ia) 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 the Placement AgentsAegis, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Aegis promptly following such filing.
(iib) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Agreement, file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents Aegis within a reasonable period of time prior to the filing thereof and the Placement Agents Aegis shall not have reasonably objected thereto in good faith.
(iiic) The Company will notify the Placement Agents Underwriters promptly, and will, if requested, confirm such notification in writing, : (1i) when any post-post- effective amendment to the Registration Statement becomes effective; (2ii) 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; (3iii) 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; (4iv) 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 (5v) 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents Underwriters promptly of all such filings.
(ivd) If, at any time when the Final a Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Securities Act, 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 counsel to the Placement AgentsUnderwriter 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 counsel to the Placement AgentsUnderwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein 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 counsel to the Placement AgentsUnderwriter Counsel, 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 the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement AgentsUnderwriters, without charge, such number of copies thereof as the Placement Agents Underwriters may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretoUnderwriters.
(ve) The Company will furnish to the Placement Agents Underwriters and their counselUnderwriter Counsel, without charge charge: (ai) 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 (bii) so long as a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Securities Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Underwriters may reasonably request.
(vif) The Company will comply with all the undertakings contained in the Registration Statement.
(viig) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Aegis, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an Issuer "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 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 without as an "issuer free writing prospectus," as defined in Rule 433 promulgated under the prior written consent of Securities Act, and has complied and will comply with the Placement Agents.
(viii) 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 Issuer Permitted Free Writing Prospectuses not required to be filed, and timely file and include the appropriate legends as required by filed pursuant to 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.
(ix) 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.”
(xh) Prior to the sale of the Shares to the Investors, the Company will cooperate with the Placement Agents Aegis and their counsel 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 the Placement Agents 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.
(xii) 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 Aegis, 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 cause ensure that the Shares to be are 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.
(xiik) The Company shall retain a firm of independent certificate public accountants, acceptable to Aegis, 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.
(xiiip) The Company will notify promptly shall, upon the Representative if reasonable request of the Company ceases Underwriters, deliver written affirmation of any certificate delivered to be an Emerging Growth Company at any time the Underwriters pursuant to Section 7 prior to any Closing Date following the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up PeriodInitial Closing Date.
(xivq) If The Company shall supply Aegis and its counsel, at any the Company's costs, with a reasonable number of bound volumes of the public offering materials within a reasonable time following after the distribution of any Written Testing-the-Waters CommunicationClosing, any event occurs as well as a result reasonable number 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 commemorative Lucite tombstones as requested by Aegis.
(r) Upon the statements therein in the light of the circumstances under which they were made at such time not misleadingClosing, the Company will grant Aegis the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) notify promptly sales to employees under any compensation or stock option plan approved by 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 correct such statement or omission; and (iii) supply any 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 of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock shareholders of the Company, (ii) shares issued in payment of the “Lockconsideration 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 Aegis accepts such right of first refusal, Aegis shall be entitled to no less than 33.33% of the underwriting, non-Up Securities”) accountable expenses allowance, warrant coverage or other investment banking compensation for a period any such offering and shall act as the lead manager of 180 any such offering. If 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 date of this Agreement (the “Lock-Up Period”)Company containing such proposal, except then Aegis will have not claim or right 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described such sale contained in the Final Prospectusany such notice.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
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 Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To mail and make any offer relating generally available to its stockholders as soon as practicable an earnings statement covering the Shares twelve-month period ending March 31, 2001 that would constitute an Issuer Free Writing Prospectus without shall satisfy the prior written consent provisions of Section 11(a) of the Placement AgentsAct, and to advise you in writing when such statement has been so made available.
(viiih) The Company will retain in accordance 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 record holders of Common Stock or furnished to or filed with the Rules Commission or any national securities exchange on which any class of securities of the Company is listed and Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel and include the appropriate legends as required by Company's accountants in connection with the Rules registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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 subjectthis Section.
(xij) The Company will To use its best efforts to cause list for quotation the Shares on the Nasdaq National Market and to be listed for trading on The Nasdaq Capital Market at maintain the time listing of the ClosingShares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(xiik) 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 will not at prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
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 Placement Agents Agent as follows:
(ia) The When 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 the Placement Agents, ) pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents 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 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Registration Period, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, except as required by law, unless a copy thereof shall first have been submitted to the Placement Agents Agent within a reasonable period of time prior to the filing thereof and the Placement Agents Agent shall not have reasonably and timely objected thereto in good faith.
(iiid) The Company will notify the Placement Agents Agent promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effectiveeffective at any time during the Registration Period; (2) 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 Prospectuses or for additional informationinformation at any time during the Registration Period; (3) 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, at any time during the Registration Period; (4) 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 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 (5) 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents Agent promptly of all such filings.
(ive) If, at any time when the Final a Prospectus relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, 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 counsel to the Placement AgentsAgent, 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 counsel to the Placement AgentsAgent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsAgent, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents and Agent and, subject to Section 5(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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement AgentsAgent, without charge, such number of copies thereof as the Placement Agents Agent may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement AgentsAgent, and the Placement Agents agree Agent agrees to provide to each Investor, prior to the Closing, a copy of the Final Prospectus and any amendments or supplements thereto.
(vf) The Company will furnish to the Placement Agents Agent and their its counsel, without charge (ai) 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 (bii) so long as a prospectus relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Agent may reasonably request.
(vig) The Company will comply with all the undertakings contained in the Registration Statement.
(viih) The Company will not 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.Agent, and unless counsel to the Company and the Placement Agent agree that the Company is not an “ineligible issuer” and is otherwise eligible to use a free writing prospectus pursuant to Rule 405;
(viiii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed, and timely file and include the appropriate legends as required by filed pursuant to 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.
(ix) 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.”
(xj) Prior to the sale of the Shares Units to the Investors, the Company will cooperate with the Placement Agents Agent and their 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 the Placement Agents Agent may reasonably and timely request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xik) The Company will use its best efforts apply the net proceeds from the offering and sale of the Units in substantially the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(l) The Company will take all actions necessary to cause ensure that the Shares to be and the Warrant Shares are listed or approved for trading listing on The Nasdaq Capital Market NYSE Amex Equities at the time of Closing, with such listing to occur at the ClosingClosing or as soon as practicable thereafter.
(xiim) 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.
(xiiin) The Company will notify promptly shall comply with all of the Representative if terms and conditions set forth in the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters CommunicationAgreement, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingincluding without limitation, the Company will (i) notify promptly covenant that it shall not consent to any request by any other party subject to a lock-up agreement to permit the Representative so that use sale by such party 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 correct such statement or omission; and (iii) supply any 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 of the 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusStock.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
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 Placement Agents as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, during such period as agrees to allocate and remit funds received from customers for the Final Prospectus would be required by law to be delivered in connection with sales benefit of the Shares by an underwriter or dealer in connection with each of the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Receivables Facility SPV, file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof each Administrative Agent and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptlyeach Securitization SPV, respectively, and will, if requested, confirm shall control the movement of such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) funds out of the issuance by Collection Accounts (such allocation, remittance and deposits hereafter called 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; (4“Allocation Services”) 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 (5) 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules terms of this Agreement and Regulations all Issuer Free Writing Prospectuses not required to be filed, the Credit and timely file and include the appropriate legends as required by the Rules and RegulationsCollection Policy. The Company represents that it has satisfied same entity must always act as servicer in the performance of the Allocation Services with respect to the Joined Party Transaction Documents 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 showReceivables Documents.
(ixb) 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 apply as servicer, collection agent or similar role thereunder, or in the net proceeds from event that the offering RFA Administrative Agent is entitled to, and sale desires to, exercise its right to replace the Company as Servicer, and therefore to terminate the role of the Shares Company as the provider of the Allocation Services hereunder, the party desiring to exercise such right shall promptly give written notice to the other Administrative Agents (the “Servicer Notice”) in accordance with the manner set forth notice provisions of this Agreement and consult with the other Administrative Agents with respect to the Person who would replace the Company as the provider of the Allocation Services hereunder. Any successor to the 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 such successor shall 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 accordance with this Section 6 is referred to herein as the Final Prospectus under the caption “Use of ProceedsReplacement Collection Agent.”
(xc) Prior Anything in this Agreement to the sale contrary 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 the consents, if required by law, regulation, regulatory order or of the Shares California Public Utility Commission and as may be required by the Receivables Documents or any Joined Party Transaction Document. The parties hereto acknowledge and agree that any approval or consent of any rating agency that is required in order to satisfy the Investors, the Company will cooperate with the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it Rating Agency Condition is not now so qualified subject to any standard of commercial reasonableness, and the parties are bound to satisfy this condition whether or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subjectthe rating agencies are unreasonable or arbitrary.
(xid) The Anything in this Agreement to the contrary notwithstanding, the Company’s obligations to the Collection Account Agent hereunder shall survive notwithstanding that a Replacement Collection Agent has replaced the Company will use its best efforts to cause as the Shares to be listed for trading on The Nasdaq Capital Market at the time provider of the ClosingAllocation Services hereunder.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
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 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 Requisite Consenting Cross Holders, it shall:
(a) use commercially reasonable efforts to meet all deadlines set forth in Section 5 hereof.
(b) not directly or indirectly seek, solicit, or support any other plan, sale, proposal, or offer of dissolution, winding up, liquidation, reorganization, merger, or restructuring of the Company that could reasonably be expected to prevent, delay or impede the restructuring of the Company as contemplated by the Amended Plan or that is inconsistent with this Agreement (collectively, an “Alternative Plan”); provided, that the Placement Agents 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 effective date of such Alternative Plan;
(c) not amend the Amended 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 followsdefined 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 the Restructuring Transactions embodied in the Amended Plan and Term Sheet;
(e) unless provided under Section 4(b), support and complete the Restructuring Transactions substantially on the terms set forth in the Amended Plan, with such terms 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) being reasonably satisfactory in form and substance to the Company, the Requisite Consenting 10% Noteholders, and (ii) to the extent adverse to the Consenting Cross Holders, subject to the reasonable consent of the Requisite Consenting Cross Holders;
(h) pay all reasonable and documented fees and expenses incurred by:
(i) The Registration Statement has become effectivethe 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 terms of D&P’s engagement letter dated June 30, 2011 (the “D&P Fee Letter”); provided, that as of January 1, 2012, and if Rule 430A under going forward all reasonable and document D&P monthly fees and expenses are to be paid pursuant to the Act is used or the filing Alternative Plan Trigger terms of the Final Prospectus is otherwise required under Rule 424(b) under the ActD&P Fee Letter; provided further, that the Company will file 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 Prospectus Order Granting Adequate Protection under Sections 361, 362, 363 and 507 of the Bankruptcy Code, dated June 30, 2011 [Docket No. 78] (properly completed if Rule 430A under the Act has been used“Stipulation”), subject to except D&P’s Deferred Restructuring Fee, which shall be payable upon the prior approval Effective Date of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.Amended Plan; and
(ii) The Company will notthe Consenting Cross Holders, during up to $1.75 million, for their employment of counsel and financial advisors, with the allocation of such period as the Final Prospectus would be required by law amount to be delivered in connection with sales of agreed upon amongst the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faithConsenting Cross Holders.
(iiii) The Company will notify subject to the Placement Agents promptlyrequirements of the Bankruptcy Code for notice, hearing and Court approval, among other things, operate its business in the ordinary course taking into account the terms of the Amended Plan, Term Sheet and the Chapter 11 Cases;
(j) unless otherwise required by the 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 signature pages attached hereto to be redacted to the extent this Agreement is filed on the docket maintained in the Chapter 11 Cases, and willnot 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 name on the signature page of a Joinder Agreement executed by a Consenting Noteholder that becomes a Party to this Agreement after the Execution Date);
(k) if requested, confirm such notification in writing, (1) when any post-effective amendment to a member of the Registration Statement becomes effective; (2) Company’s management knows of any request a breach 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; (3) 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; (4) 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 (5) 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.obligations, representations, warranties, or covenants of the Company set forth in this Agreement, furnish prompt written notice (and in any event within five (5) business days of such actual knowledge) to counsel to the Consenting Noteholders; and
(xiiil) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingevent there is a dispute regarding whether any Consenting Noteholder is unreasonably withholding its consent, the Company will (i) notify promptly the Representative so that use shall seek prompt resolution 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 correct such statement or omission; and (iii) supply any 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 of the 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described said dispute in the Final ProspectusBankruptcy Court.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
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 Placement Agents Underwriters as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, either prior to the Effective Date or thereafter during such period as the Final Prospectus would be is 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 (whether physically or through compliance with Rule 172 under the Act any Underwriter or any similar ruledealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172), file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Representatives within a reasonable period of time prior to the filing thereof and the Placement Agents Representatives shall not have reasonably objected thereto in good faith.
(iiib) The Company will notify the Placement Agents Representatives promptly, and will, if requested, will confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; , (2) of the receipt of any comments from or any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Final Registration Statement, any Preliminary Prospectus or any Issuer Free Writing the Prospectus or for additional information; , (3) 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, notice objecting to its use or the initiation of any proceedings for that purpose or the threat thereof; , (4) 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 Final Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement Statement, any Preliminary Prospectus or the Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; , and (5) of receipt by the Company or any representative or attorney of the Company of any 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 Representatives, without charge, four copies of the signed 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) 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.
(d) The Company has omitted will comply with all the provisions of any information from undertakings contained in the Registration Statement.
(e) The Company will deliver to each of the Underwriters, without charge, as many copies of the Prospectus, each Issuer Free Writing Prospectus or any 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 430A under 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 will use its best efforts was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, subject to the provisions of Section 5(a) hereof, the Company will forthwith prepare and make all requisite filings duly file with the Commission pursuant to said Rule 430A an appropriate supplement or amendment thereto, and to notify the Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating 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 offering of the Shares is required by the Underwriters if such document would be deemed to be delivered under incorporated by reference into the Act (whether physically Prospectus which is not approved by the Representatives after reasonable notice thereof. If there occurs an event or through compliance with Rule 172 under the Act or any similar rule), the Company becomes aware of the occurrence of any event development as a result of which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(vf) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents Representatives and their 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 the Placement Agents Representatives may reasonably request; 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.
(xig) 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 use make generally available to holders of its best efforts to cause securities as soon as may be practicable but in no event later than the Shares to be listed for trading on The Nasdaq Capital Market at the time last day of the Closingfifteenth 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), with respect to the Primary Entities, for a period of 12 months commencing after the Effective 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.
(xiii) 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 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) reasonably incurred by you in connection herewith.
(j) 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.
(xiiik) The Company will notify promptly apply the Representative if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion offering and sale of the period when a prospectus relating to Shares in the Shares is required to be delivered manner set forth in the General Disclosure Package and the Prospectus under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion “Use of the Lock-Up PeriodProceeds.”
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xvl) The Company will notuse its best efforts to have the Shares listed, directly or indirectlysubject to notice of issuance, without on the New York Stock Exchange.
(m) The Company represents and agrees that, unless it obtains the prior written consent of the Placement AgentsRepresentatives, 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 sellthe 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 the requirements of Rules 164 and 433 of the 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 or (ii) information that describes the final terms of the Shares or their offering.
(n) During the period beginning from the date hereof and continuing to and including the date 60 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option or warrant to purchase, make any short sale, sale or otherwise dispose of (or announce any offerdispose, saleexcept as provided hereunder, grant of any option or warrant to purchase or other disposition), any shares of capital stock securities of the Company that are substantially similar to the Shares, including but not limited to any options 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 warrants 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 purchase shares of Common Stock or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any such substantially similar securities (other than pursuant to employee stock options under any benefit plan option plans existing on, or upon the conversion or exchange of the Company existing on convertible or exchangeable securities outstanding as of, the date hereof, and described in the Final Prospectus.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiiithis Agreement), the Company 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 release or waiverwithout your prior written consent.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ps Business Parks Inc/Ca), Underwriting Agreement (Ps Business Parks Inc/Ca)
Agreements of the Company. The Company covenants and agrees with each of the Placement Agents Underwriters as follows:
(ia) 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 under such other information as the Act is used or Underwriters and the filing Company deem appropriate in connection with the offering of the Final Prospectus is otherwise required under Notes, and the Company will timely file such supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Act, but the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), 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 Final Prospectus Prospectus, unless a copy thereof it shall first have been submitted delivered copies of such amendments or supplements to the Placement Agents within a Underwriters, with reasonable period of time prior opportunity to comment on such proposed amendment or supplement or if the filing thereof and the Placement Agents Underwriters shall not have reasonably objected thereto in good faith.
(iii) The promptly after receipt thereof; the Company will notify immediately advise the Placement Agents promptly, and will, if requested, confirm such notification in writing, Underwriters or the Underwriters' counsel (1i) 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 (2ii) 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 Final Prospectus or any Issuer Free Writing Prospectus or for additional information; (3) offer and sale of the issuance by the Commission of any stop order preventing Notes or suspending the effectiveness of the Registration Statement, the Final Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for or examinations that purpose may lead to such an order or the threat thereof; (4) 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 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 thereinis advised thereof, in light of the circumstances in which they are made, not misleading; and (5) 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 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 430A under the Act, 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 Placement Agents promptly of all such filingsobtain as soon as possible its lifting, if issued.
(ivb) If, at any time when the Final Prospectus relating to the Shares Notes is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Final Prospectus, Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, supplemented would 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, necessary at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company promptly will promptly notify each of the Placement Agents 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 Final such Prospectus that corrects will correct such statement or omission or effects an amendment that will effect such compliance and will deliver to compliance. Neither the Placement AgentsUnderwriters' consent to, without chargenor the Underwriters' delivery of, any such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement Agents, and the Placement Agents agree to provide to each Investor, prior to the Closing, shall constitute a copy waiver of any of the Final Prospectus and any amendments or supplements theretoconditions set forth in Section 6 hereof.
(vc) 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 furnish to the Placement Agents and their counselUnderwriters, without charge (a) one conformed copy charge, copies 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, amendments and (b) so long as a prospectus supplements to such documents relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Notes, as many copies of in each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto case in such quantities as the Placement Agents Underwriters may reasonably request.
(vie) The Company No amendment or supplement will comply with all the undertakings contained in be made to the Registration StatementStatement or Prospectus which the Underwriters shall not previously have been advised or to which it shall reasonably object after being so advised.
(viif) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents Underwriters and with 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 the Placement Agents Underwriters may reasonably requestdesignate 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.
(xig) The Company will use its best efforts consents to cause the Shares to be listed for trading on The Nasdaq Capital Market at use, in accordance with the time securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and by dealers, of the ClosingProspectus furnished by the Company.
(xiih) 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 documents 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.
(i) So long as any of the 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 filed with the SEC pursuant to 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 time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the 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 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 out-of-pocket expenses (including fees and expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will be applied substantially in accordance with the description set forth in the Prospectus.
(l) 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 Shares Notes to facilitate the sale or resale of any of the SharesNotes.
(xiiim) The Company will notify promptly For a period from the Representative if date of this Agreement until the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion retirement of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNotes, the Company will (i) notify promptly deliver to you the Representative so that use annual statements of compliance and 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 correct such statement or omission; and (iii) supply any amendment or supplement annual independent certified public accountants' reports furnished to the Representative in Trustee or the Company pursuant to the Servicing Agreement as soon as such quantities as may be reasonably requestedstatements and reports are furnished to the Trustee or the Company.
(xvn) The On or before each date that Financed Eligible Loans are pledged under the Indenture, the Company will notshall 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 the prior written consent of notice to the Placement AgentsUnderwriters, offer to sellsell or sell notes (other than the Notes) collateralized by FFELP Loans other than pursuant to the Nelnet Student Loan Trust 2003-2 transaction; provided, sellhowever, contract that this shall not be construed to sellprevent the sale of FFELP Loans by the Company.
(p) If, 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)at the time the Registration Statement became effective, any shares information shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act, then, immediately following the execution of capital stock of this Agreement, the Company will prepare, and file or securities convertible intotransmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, or exchangeable or exercisable forcopies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, shares of capital stock of the Company, (the “Lock-Up Securities”) for a period of 180 days but not later than 16 months after the date of this Agreement (Agreement, the “Lock-Up Period”), except with respect Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding as effective date of the date hereofRegistration Statement, and (ii) the issuance of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company's most recent Annual Report or waiverForm 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
Appears in 2 contracts
Samples: Underwriting Agreement (Nelnet Education Loan Funding Inc), Underwriting Agreement (Nelnet Inc)
Agreements of the Company. The Company covenants and hereby agrees with the Placement Agents Underwriter as follows:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Bonds for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when such Rule 462(b) Registration Statement has become effective and (v) of becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriter a prospectus is required by law to be delivered under in connection with sales by the Act Underwriter or a dealer, to furnish in New York City to the Underwriter and any dealer as many copies of the Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) and any documents incorporated by reference, as the Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriter, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 Placement Agents, without charge, such number of Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xf) Prior to the sale any public offering of the Shares Bonds, to the Investors, the Company will cooperate with the Placement Agents Underwriter and their 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 the Placement Agents Underwriter may reasonably request, to 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.
(xig) The Company will use To mail and make generally available to its best efforts to cause security holders as soon as practicable an earnings statement covering the Shares to be listed for trading on The Nasdaq Capital Market at twelve-month period ending December 31, 1999 that shall satisfy the time provisions of Section 11(a) of the ClosingAct, and to advise the Underwriter in writing when such statement has been so made available.
(xiih) The So long as the Bonds are outstanding, (i) 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 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 mail and make generally available as soon as practicable, but not at any timelater than 45 days, directly or indirectlyafter the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, take any action intendeda consolidated balance sheet, or which might reasonably be expecteda 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 Bonds are outstanding, to cause furnish to the Underwriter as soon as available copies of all reports or result in, other communications furnished to its security holders or furnished to or filed with the Commission or any national securities exchange on which will constitute, stabilization any class of securities of the price Company is listed and such other publicly available information concerning the Company and its subsidiaries as the Underwriter 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 Shares 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 facilitate the sale or resale of any of the Sharesforegoing, 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 hereunder for which provision is not otherwise made in this Section.
(xiiik) The Company will notify promptly During the Representative if 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 ceases or any warrants, rights or options to be an Emerging Growth purchase or otherwise acquire debt securities of the Company at any time prior substantially similar to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters CommunicationBonds, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will other than (i) notify promptly the Representative so that use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented; Bonds, (ii) amend or supplement securities issued under the Written Testing-the-Waters Communication to correct such statement or omission; and Existing Mortgage (as defined in the Indenture), (iii) supply any amendment or supplement to commercial paper issued in the Representative in such quantities as may be reasonably requested.
ordinary course of business and (xviv) The Company will not, directly or indirectlypromissory notes issued for working capital purposes under the Company's existing bank credit facilities, without the prior written consent of the Placement AgentsUnderwriter.
(l) Not to voluntarily claim, offer and to sellactively resist any attempts to claim, 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 the benefit of any option or warrant to purchase or other disposition), any shares of capital stock usury laws against the holders of the Bonds.
(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 or securities convertible into, or exchangeable or exercisable for, shares of capital stock prior to the Closing Date and to satisfy all conditions precedent to the delivery of the CompanyBonds.
(n) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Bonds, (to file a Rule 462(b) Registration Statement with the “Lock-Up Securities”Commission registering the Bonds not so covered in compliance with Rule 462(b) for a period of 180 days after by 10:00 P.M., New York City time, on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 2 contracts
Samples: Underwriting Agreement (Midland Enterprises Inc /De/), Underwriting Agreement (Eastern Enterprises)
Agreements of the Company. (a) The Company covenants agrees to use its commercially reasonable efforts to commence the Exchange Offer and agrees 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 Placement Agents Securities and Exchange Commission (the “Commission”), and to cause the Registration Statement (as follows:defined below) to be declared effective under the Securities Act as promptly as practicable.
(ib) The Company shall file, on or before April 15, 2003, with the Commission a Registration Statement has become effective, and if Rule 430A under on Form S-4 or any other appropriate form (the Act is used or the filing of the Final Prospectus is otherwise required under Rule 424(b“Registration Statement”) under the Act, Securities Act covering the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject to the prior approval offering of the Placement Agents, pursuant shares of Broadwing Stock to Rule 424(b) under be offered in exchange for the Act within shares of Preferred Stock in connection with the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filingExchange Offer.
(iic) Nothing in this Agreement shall be deemed to prevent the Company or BCI from taking, or failing to take, any action that it is obligated to take (or fail to take) in the performance of any fiduciary or similar duty which the Company or BCI owes to any other Person; provided, however, that such fiduciary or similar duty shall apply only in the circumstance that BCI or the Company receives an unsolicited offer or expression of 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 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 Exchange Offer and Consent Solicitation in a manner not permitted by Section 6, this Agreement and all of the obligations and undertakings of the parties set forth in this Agreement shall terminate and expire.
(d) The Company shall provide the Stockholders with a reasonable opportunity to review and comment upon the form and substance of the documents and other materials that the Company shall distribute to the Stockholders to effect the Exchange Offer and Consent Solicitation.
(e) The Company will notprovide the Stockholders with written notice of any executed amendments, during such period as waivers or supplements (other than any amendments, waivers or supplements relating to immaterial, and non-economic matters) to the Final Prospectus would be required by law to be delivered in connection with sales terms of the Shares by an underwriter or dealer in connection with the offering contemplated by this Sale Agreement (whether physically or through compliance with Rule 172 under as defined below) immediately after 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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) 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; (4) 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 (5) 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 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 execution of any such order at the earliest possible momentamendment, waiver or supplement. If the The Company has omitted any information from the Registration Statement, pursuant hereby acknowledges that its failure to Rule 430A under the Act, it provide such notice 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents and will promptly prepare and file with the Commission, at preclude the Company’s expense, an amendment right 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 terminate 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii7(vi), the Company 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 release or waiver.
Appears in 2 contracts
Samples: Exchange and Voting Agreement (Broadwing Communications Inc), Exchange and Voting Agreement (Broadwing Inc)
Agreements of the Company. The Unless this Agreement is terminated in accordance with its terms, the Company covenants and agrees with the Placement Agents as followsPurchasers:
(ia) The Registration Statement has become effective, and if Rule 430A under To advise 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Purchasers promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by the Purchasers, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) 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 Form S-4 or for additional information; , (3ii) 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 Final Prospectus suspension of qualification of the Remaining Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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 (4iv) 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeForm 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 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 Placement Agents promptly of all such filings.time;
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating To not file any post effective amendments to the Shares is required to be delivered under Form S–4 that changes any terms of the Act (whether physically or through compliance with Rule 172 under Exchange Offer, the Act or any similar rule), as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus Offering or the Final Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus Restructuring without the prior written consent of the Placement Agents.each Purchaser, which consent shall not be unreasonably withheld; provided, that any Purchaser that reasonably withholds its consent shall be deemed to no longer be party to this Agreement;
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xc) Prior to the sale any public offering of the Remaining Shares to the Investorsto, the Company will (i) cooperate with the Placement Agents Purchasers and their 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 the Placement Agents Purchasers may reasonably request, (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.;
(xid) The Company will 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 fees, disbursements and expenses of its counsel and its accountants in connection with the 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 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 preparation and filing of the registration statement on Form 8-A relating to the 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, 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;
(f) To use its commercially reasonable best efforts to do and perform all things required or necessary to be listed for trading on The Nasdaq Capital Market done and performed under this Agreement by the Company prior to the 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 Closing.
(xii) The Company will effectiveness of this Agreement does not at any time, directly or indirectly, take any action intended, or which might reasonably be expectedcover all of the Remaining Shares, to cause or result infile 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, or which will constitute, stabilization of the price of the Shares to facilitate the sale or resale of and in any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time event prior to the later of (a) completion expiration of the period when a prospectus relating Exchange Offer, and to pay to the Shares is required Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to be delivered under give irrevocable instructions for the Act (including in circumstances where payment of such requirement may be satisfied fee pursuant to Rule 172 111(b) under the Securities Act) and (b) completion of the Lock-Up Period.; and
(xivh) If at any time following That it shall provide notice to the distribution Purchasers of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 breach of this Agreement (and seek to cure the “Lock-Up Period”)same, except with respect to (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding in each case as of the date hereof, and (ii) the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectuspromptly as practicable.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
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 Placement Agents as follows:
(ia) The When 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 the Placement Agents, ) pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to 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 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Registration Period, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, except as required by law, unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably and timely objected thereto in good faith.
(iiid) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effectiveeffective at any time during the Registration Period; (2) 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 Prospectuses or for additional informationinformation at any time during the Registration Period; (3) 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, at any time during the Registration Period; (4) 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 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 (5) 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents promptly of all such filings.
(ive) If, at any time when the Final a Prospectus relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, 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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(vf) The Company will furnish to the Placement Agents and their counsel, without charge (ai) 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 (bii) so long as a prospectus relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request.
(vig) The Company will comply with all the undertakings contained in the Registration Statement.
(viih) The Company will not 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 “ineligible issuer” and is otherwise eligible to use a free writing prospectus pursuant to Rule 405;
(viiii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed, and timely file and include the appropriate legends as required by filed pursuant to 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.
(ix) 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.”
(xj) Prior to the sale of the Shares Units to the Investors, the Company will cooperate with the Placement Agents and 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 the Placement Agents may reasonably and timely request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xik) The Company will use its best efforts apply the net proceeds from the offering and sale of the Units in substantially the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(l) The Company will take all actions necessary to cause ensure that the Shares to be listed and the Warrant Shares are eligible for trading trading, when issued on The Nasdaq Capital Market the OTC Bulletin Board at the time of Closing, to the Closingextent such actions are within its control.
(xiim) 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.
(xiiin) The Company will notify promptly shall comply with all of the Representative if terms and conditions set forth in the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters CommunicationAgreement, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingincluding without limitation, the Company will (i) notify promptly covenant that it shall not consent to any request by any other party subject to a lock-up agreement to permit the Representative so that use sale by such party 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 correct such statement or omission; and (iii) supply any 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 of the 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusStock.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
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 Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) and any documents incorporated therein by reference as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To mail and make any offer relating generally available to its stockholders as soon as practicable an earnings statement covering the Shares twelve-month period ending March 31, 1998 that would constitute an Issuer Free Writing Prospectus without shall satisfy the prior written consent provisions of Section 11(a) of the Placement AgentsAct, and to advise you in writing when such statement has been so made available.
(viiih) The 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 record holders of its Common Stock a financial report of the Company will retain 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 accordance 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 Rules Commission or any national securities exchange on which any class of securities of the Company is listed and Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(j) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel, the Company's accountants and include any Selling Stockholder's counsel (in addition to the appropriate legends as required by Company's counsel) in connection with the Rules registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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.
(xik) The Company will To use its best efforts to cause maintain the Shares to be listed for trading inclusion of the Common Stock on The Nasdaq Capital National Market at (or on a national securities exchange) for a period of five years after the time effective date of the ClosingRegistration Statement.
(xiil) 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 will not at prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiim) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 2 contracts
Samples: Underwriting Agreement (May & Speh Inc), Underwriting Agreement (May & Speh Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To mail and make any offer relating generally available to its stockholders as soon as practicable an earnings statement covering the Shares twelve-month period ending March 31, 2001 that would constitute an Issuer Free Writing Prospectus without shall satisfy the prior written consent provisions of Section 11(a) of the Placement AgentsAct, and to advise you in writing when such statement has been so made available.
(viiih) The Company will retain in accordance 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 record holders of Common Stock or furnished to or filed with the Rules Commission or any national securities exchange on which any class of securities of the Company is listed and Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel and include the appropriate legends as required by Company's accountants in connection with the Rules registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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 subjectthis Section.
(xij) The Company will To use its best efforts to cause list for quotation the Shares on the Nasdaq National Market and to be listed for trading on The Nasdaq Capital Market at maintain the time listing of the ClosingShares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(xiik) 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 will not at prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 2 contracts
Samples: Underwriting Agreement (Netpliance Inc), Underwriting Agreement (Netpliance Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsseveral Underwriters that:
(ia) The Registration Statement has become effectiveDuring the period beginning with the Initial Sale Time and ending on the later of the Closing Date or such date as, and if Rule 430A under in the Act is used or opinion of counsel for the filing of Underwriters, 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) The Company will not, during such period as the Final Prospectus would be no longer required by law to be delivered in connection with sales of the Shares by an underwriter initial offering or dealer in connection with the offering contemplated by this Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) 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; (4) 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 (5) 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under 172) (the Act“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 Representatives reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to 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.
(b) completion During the Prospectus Delivery Period, the Company will promptly advise the Representatives (i) when the Final Prospectus and any 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 Lock-Up Periodoffering of the Securities, any amendment to the Registration Statement has been filed or becomes effective, (iii) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof, including, if necessary, and subject to the first sentence of paragraph (a) of this Section 4, by filing an amendment to the Registration Statement 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.
(xivc) If at any The Company will prepare a final term sheet, containing solely a description of the Securities, as set forth in Schedule IV hereto, and will file such term sheet pursuant to Rule 433(d) within the time following required by such Rule.
(d) If, during the distribution of any Written Testing-the-Waters CommunicationProspectus Delivery Period, any event occurs as a result of which such Written Testing-the-Waters Communication 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 include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or the Exchange Act or the respective rules and regulations thereunder, the Company promptly will (i) notify promptly the Representative so that use Representatives of such event or, in circumstances where the Written Testing-the-Waters Communication may cease until it is amended or supplemented; Company’s obligations under this paragraph (d) arise from an opinion of counsel for the Underwriters, notify the Representatives of such event after the Company receives such opinion, (ii) amend or supplement prepare and file with the Written Testing-the-Waters Communication Commission, subject to correct such the first sentence of paragraph (a) of this Section 4, an amendment to the Registration Statement, a new registration statement or omission; and (iii) supply any an amendment or supplement to the Representative Disclosure Package or the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as may be reasonably requested.
(xve) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited) covering a period of at least 12 months beginning after the date hereof and otherwise satisfying the provisions of Section 11(a) of the Act (including, at the option of the Company, Rule 158).
(f) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (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 will arrange for the qualification 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 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, directly or indirectly, without the prior written consent of the Placement AgentsRepresentatives, offer prepare, use, authorize, approve or refer to sellany 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 file any Issuer Free Writing Prospectus with the Commission (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 consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(j) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, grant any option or warrant to purchase, make any short salepledge, 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 transaction, until the Closing Date.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of (or announce any offer, sale, grant the price of any option or warrant to purchase or other disposition), any shares of capital stock security of the Company to facilitate the sale or securities convertible into, or exchangeable or exercisable for, shares of capital stock resale of the Company, Securities.
(l) The Company will retain copies of each Issuer Free Writing Prospectus that is not filed with the “Lock-Up Securities”Commission in accordance with Rule 433.
(m) for a period of 180 days after The Company will use the date of this Agreement (net proceeds from the “Lock-Up Period”), except with respect to (i) offering as set forth in the issuance of shares of Common Stock upon the exercise of stock options outstanding as of the date hereof, Disclosure Package and (ii) the issuance of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
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 Placement Agents as followsyou:
(ia) The Registration Statement has become effectiveTo advise you promptly and, 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 Actrequested by you, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of confirm such filing to the Placement Agents promptly following such filing.advice in writing,
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; ,
(3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of any of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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,
(4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 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 430A 424(b) under the Act; and during the period specified in Section 5(d) below, it will use its best efforts not to comply with file any further amendment to the provisions Registration Statement and not to make any amendment or supplement to the Prospectus of and make all requisite filings with the Commission pursuant which you shall not previously have been advised or to said Rule 430A and to notify the Placement Agents promptly of all such filingswhich you shall reasonably object after being so advised.
(ivd) 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 nine months or more after the Final 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 Act expense of such Underwriter or dealer.
(whether physically or through compliance with Rule 172 under e) If during the Act or any similar ruleperiod 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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly upon your request forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents you may reasonably request. The Company consents ; provided, however, that in case any Underwriter or dealer is required to deliver a prospectus in connection with the use sale of any of the Final Shares at any time nine months or more after the time of issue of the Prospectus, the preparation and delivery of such copies of the Prospectus or (and of any amendment or supplement thereto by the Placement Agents, and the Placement Agents agree to provide to each Investor, prior to the Closing, a copy Prospectus) as you so request shall be at the expense of the Final Prospectus and any amendments such Underwriter or supplements theretodealer.
(vf) 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 Placement Agents and their 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.
(ag) 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, and (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), 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 many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents you may reasonably request.
(vii) The Company will comply with 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 undertakings contained in performance of the Registration Statement.Sellers' obligations under this Agreement, including:
(viii) The Company will not make the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any offer relating Selling Stockholder's counsel (in addition to the Shares that would constitute an Issuer Free Writing Prospectus without Company's counsel) in connection with the prior written consent registration and delivery of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any electronic road show.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,
(ixii) The Company will apply the net proceeds from the offering all costs and sale of the Shares in the manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
(x) Prior expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto),
(v) the Placement Agents may reasonably request; providedfiling fees, that fees, charges 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.,
(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, 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 subjectof the Shares by them, and any advertising expenses connected with any offers they may make.
(xij) The Company will To list for quotation the Shares on the Nasdaq National Market and to use its best efforts to cause maintain the listing of the Shares to be listed on the Nasdaq National Market for trading on The Nasdaq Capital Market at a period of three years after the time date of the Closingthis Agreement.
(xiik) 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 will not at on or prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 p.m., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
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 Placement Agents Underwriter[s] as follows:
(ia) 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 the Placement AgentsUnderwriter[s], pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Underwriter[s] promptly following such filing.
(iib) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Agreement, file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents Underwriter[s] within a reasonable period of time prior to the filing thereof and the Placement Agents Underwriter[s] shall not have reasonably objected thereto in good faith.
(iiic) The Company will notify the Placement Agents Underwriter[s] promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) 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; (4) 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 (5) 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents Underwriter[s] promptly of all such filings.
(ivd) If, at any time when the Final a Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, 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 counsel to the Placement AgentsUnderwriter[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 counsel to the Placement AgentsUnderwriter[s], include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsUnderwriter[s], at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Securities Act or the Rules and RegulationsRules, the Company will promptly notify the Placement Agents 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement AgentsUnderwriter[s], without charge, such number of copies thereof as the Placement Agents Underwriter[s] may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement AgentsUnderwriter[s], and the Placement Agents agree Underwriter[s] agree[s] to provide to each Investor, prior to the Closing, a copy of the Final Prospectus and any amendments or supplements thereto.
(ve) The Company will furnish to the Placement Agents Underwriter[s] and their [its][their] counsel, without charge (ai) 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 (bii) so long as a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Underwriter[s] may reasonably request.
(vif) The Company will comply with all the undertakings contained in the Registration Statement.
(viig) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement AgentsUnderwriter[s].
(viiih) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed, and timely file and include filed pursuant to 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 showRules.
(ix) 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.”
(xi) Prior to the sale of the Shares to the Investors, the Company will cooperate with the Placement Agents Underwriter[s] and their [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 the Placement Agents Underwriter[s] may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xij) The Company will apply the net proceeds from the offering and sale of the Shares in the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(k) The Company will use its best efforts to cause ensure that the Shares to be are listed for trading on The Nasdaq Capital Market the NYSE Amex at the time of the Closing.
(xiil) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
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 Placement Agents as followsseveral Underwriters that:
(ia) The Registration Statement has become effectiveDuring the period beginning with the Initial Sale Time and ending on the later of the Closing Date or such date as, and if Rule 430A under in the Act is used or opinion of counsel for the filing of Underwriters, 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) The Company will not, during such period as the Final Prospectus would be no longer required by law to be delivered in connection with sales of the Shares by an underwriter initial offering or dealer in connection with the offering contemplated by this Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) 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; (4) 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 (5) 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under 172) (the Act“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 Representatives reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to 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.
(b) completion During the Prospectus Delivery Period, the Company will promptly advise the Representatives (i) when the Final Prospectus and any 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 Lock-Up Periodoffering of the Securities, any amendment to the Registration Statement has been filed or becomes effective, (iii) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof, including, if necessary, and subject to the first sentence of paragraph (a) of this Section 4, by filing an amendment to the Registration Statement 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.
(xivc) If at any The Company will prepare a final term sheet, containing solely a description of the Securities, as set forth in Schedule IV hereto, and will file such term sheet pursuant to Rule 433(d) within the time following required by such Rule.
(d) If, during the distribution of any Written Testing-the-Waters CommunicationProspectus Delivery Period, any event occurs as a result of which such Written Testing-the-Waters Communication 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 include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or the Exchange Act or the respective rules and regulations thereunder, the Company promptly will (i) notify promptly the Representative so that use Representatives of such event or, in circumstances where the Written Testing-the-Waters Communication may cease until it is amended or supplemented; Company’s obligations under this paragraph (d) arise from an opinion of counsel for the Underwriters, notify the Representatives of such event after the Company receives such opinion, (ii) amend or supplement prepare and file with the Written Testing-the-Waters Communication Commission, subject to correct such the first sentence of paragraph (a) of this Section 4, an amendment to the Registration Statement, a new registration statement or omission; and (iii) supply any an amendment or supplement to the Representative Disclosure Package or the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as may be reasonably requested.
(xve) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited) covering a period of at least 12 months beginning after the date hereof and otherwise satisfying the provisions of Section 11(a) of the Act (including, at the option of the Company, Rule 158).
(f) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (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 will arrange for the qualification 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 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, directly or indirectly, without the prior written consent of the Placement AgentsRepresentatives, offer prepare, use, authorize, approve or refer to sellany 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 file any Issuer Free Writing Prospectus with the Commission (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 consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(j) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, grant any option or warrant to purchase, make any short salepledge, 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 transaction, until the Closing Date.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of (or announce any offer, sale, grant the price of any option or warrant to purchase or other disposition), any shares of capital stock security of the Company to facilitate the sale or securities convertible into, or exchangeable or exercisable for, shares of capital stock resale of the Company, Securities.
(l) The Company will retain copies of each Issuer Free Writing Prospectus that is not filed with the “Lock-Up Securities”Commission in accordance with Rule 433.
(m) for a period of 180 days after The Company will use the date of this Agreement (net proceeds from the “Lock-Up Period”), except with respect to (i) offering as set forth in the issuance of shares of Common Stock upon the exercise of stock options outstanding as of the date hereof, Disclosure Package and (ii) the issuance of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
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 Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 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 430A 424(b) under the Act, it will use its best efforts to comply with ; during the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Placement Agents promptly of all such filings.
(ivperiod specified in Section 5(d) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 madebelow, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel file any further amendment 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement and not to comply with make any amendment or supplement to the Act Prospectus of which you shall not previously have been advised or the Rules and Regulationsto which you shall reasonably object after being so advised; and, the Company will promptly notify the Placement Agents and will promptly during such period, to 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 Final Prospectus that corrects such statement which may be necessary or omission or effects such compliance and will deliver to the Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and their 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 hereofby you, and (ii) the issuance of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.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 each of the Placement Agents Underwriters as follows:
(ia) 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 under such other information as the Act is used or Underwriters and the filing Company deem appropriate in connection with the offering of the Final Prospectus is otherwise required under Notes, and the Company will timely file such supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Act, but the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), 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 Final Prospectus Prospectus, unless a copy thereof it shall first have been submitted delivered copies of such amendments or supplements to the Placement Agents within a Underwriters, with reasonable period of time prior opportunity to comment on such proposed amendment or supplement or if the filing thereof and the Placement Agents Underwriters shall not have reasonably objected thereto in good faith.
(iii) The promptly after receipt thereof; the Company will notify immediately advise the Placement Agents promptly, and will, if requested, confirm such notification in writing, Underwriters or the Underwriters' counsel (1i) 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 (2ii) 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 Final Prospectus or any Issuer Free Writing Prospectus or for additional information; (3) offer and sale of the issuance by the Commission of any stop order preventing Notes or suspending the effectiveness of the Registration Statement, the Final Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for or examinations that purpose may lead to such an order or the threat thereof; (4) 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 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 thereinis advised thereof, in light of the circumstances in which they are made, not misleading; and (5) 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 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 430A under the Act, 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 Placement Agents promptly of all such filingsobtain as soon as possible its lifting, if issued.
(ivb) If, at any time when the Final Prospectus relating to the Shares Notes is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Final Prospectus, Prospectus as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, supplemented would 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, necessary at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company promptly will promptly notify the Placement Agents 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 Final such Prospectus that corrects will correct such statement or omission or effects an amendment that will effect such compliance and will deliver to compliance. Neither the Placement AgentsRepresentative's consent to, without chargenor the Underwriters' delivery of, any such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement Agents, and the Placement Agents agree to provide to each Investor, prior to the Closing, shall constitute a copy waiver of any of the Final Prospectus and any amendments or supplements theretoconditions set forth in Section 6 hereof.
(vc) 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 furnish to the Placement Agents and their counselUnderwriters, without charge (a) one conformed copy charge, copies 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, amendments and (b) so long as a prospectus supplements to such documents relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Notes, as many copies of in each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto case in such quantities as the Placement Agents Underwriters may reasonably request.
(vie) [Intentionally Omitted]
(f) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents Underwriters and with 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 the Placement Agents Underwriters may reasonably requestdesignate 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.
(xig) The Company will use its best efforts consents to cause the Shares to be listed for trading on The Nasdaq Capital Market at use, in accordance with the time securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and by dealers, of the ClosingProspectus furnished by the Company.
(xiih) 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 documents 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.
(i) So long as any of the 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 filed with the SEC pursuant to 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 time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the 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 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 out-of-pocket expenses (including fees and expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will be applied substantially in accordance with the description set forth in the Prospectus.
(l) 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 Shares Notes to facilitate the sale or resale of any of the SharesNotes.
(xiiim) The Company will notify promptly For a period from the Representative if date of this Agreement until the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion retirement of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNotes, the Company will (i) notify promptly deliver to you the Representative so that use annual statements of compliance and 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 correct such statement or omission; and (iii) supply any amendment or supplement annual independent certified public accountants' reports furnished to the Representative in Trustee or the Company pursuant to the Servicing Agreement as soon as such quantities as may be reasonably requestedstatements and reports are furnished to the Trustee or the Company.
(xvn) The 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 nottake, 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 consent of notice to the Placement AgentsUnderwriters, offer to sellsell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, sellhowever, contract that this shall not be construed to sell, grant any option or warrant to purchase, make any short sale, or otherwise dispose prevent the sale of (or announce any offer, sale, grant of any option or warrant to purchase or other disposition), any shares of capital stock of FFELP Loans by the Company or securities convertible intoany entity affiliated, directly or exchangeable or exercisable forindirectly, shares of capital stock of with the Company.
(p) If, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act, then, immediately following the execution 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.
(the “Lock-Up Securities”q) for a period of 180 days As soon as practicable, but not later than 16 months after the date of this Agreement (Agreement, the “Lock-Up Period”), except with respect Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding as effective date of the date hereofRegistration Statement, and (ii) the issuance of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company's most recent Annual Report or waiverForm 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
Appears in 2 contracts
Samples: Underwriting Agreement (SLC Student Loan Asset Backed Notes Series 2002-2), Underwriting Agreement (SLC Student Loan Receivables I Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(ia) 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 under or a post-effective amendment thereto or any Additional Registration Statement to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActNotes may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject endeavor to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement or Statement, any amendment or supplements to the Final Prepricing Prospectus or any Issuer Free Writing the Prospectus or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Notes for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 material statement made in the Registration Statement or the Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel to the Placement Agents, include any untrue statement of a material fact or omit order 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.fact
Appears in 1 contract
Samples: Underwriting Agreement (Olsten Corp)
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(ia) The Registration Statement has become effectiveIf, and if Rule 430A under at 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)is executed and delivered, file any amendment or supplement to the Registration Statement or the Final Prospectus unless it is necessary for a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing, when such post-effective amendment has become effective; .
(2b) The Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing: of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; (3) 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 purpose; and within the period of time referred to in paragraph (e) 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 Prospectus (as then amended or supplemented) untrue or 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 therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other 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, the Final Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (4) 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 (5) 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 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 time.
(c) The Company will furnish to the Underwriters, without charge and upon the Underwriters' request, (i) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Underwriters may reasonably request, (ii) such number of copies of the Incorporated Documents, without exhibits, as the Underwriters may reasonably request, and (iii) one copy of the exhibits to the Incorporated Documents.
(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 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 has omitted will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any information from amendment or supplement thereto) as the Registration StatementUnderwriters may reasonably request. Subject to the provisions of subsection (f) below, pursuant the Company consents to Rule 430A under the Act, it will use its best efforts to comply 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 to said Rule 430A and to notify securities or Blue Sky laws or real estate syndication laws of the Placement Agents promptly of all such filings.
(iv) If, at any time when jurisdictions in the Final Prospectus relating to 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 Act Prospectus (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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleadingProspectus (or to file under the Exchange Act any document which, or if for any other reason it is necessaryupon filing, becomes an Incorporated Document) in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement order to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify the Placement Agents and will promptly forthwith prepare and file with the Commissionand, at the Company’s expense, an amendment subject 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 Placement Agentsprovisions of paragraph (d) above, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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 showan appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Company and the Underwriters agree that the Prospectus should be amended or supplemented, the Company, if requested by the Underwriters, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(ixf) 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 the Placement Agents Underwriters and their 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 or real estate syndication laws of such jurisdictions as the Placement Agents Underwriters may reasonably requestdesignate 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.
(xig) 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 sale of the Shares substantially in accordance with the description set forth under the caption "Use of Proceeds" in the Prospectus.
(k) 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 cause list the Shares to be listed for trading on The Nasdaq Capital Market at the time of the ClosingNYSE.
(xiin) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, Subject to cause or result in, or which will constitute, stabilization the determination by the Board of Directors of the price of the Shares to facilitate the sale or resale of any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingcontrary, 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 (ithe "Code") notify promptly and to cause 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 Partnership to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities be treated as may be reasonably requesteda partnership for federal income tax purposes.
(xvo) The Except as provided in this Agreement, the Company will notnot offer, directly sell, contract to sell, pledge or indirectlyotherwise 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 for a period of 30 days after the date of the Prospectus Supplement, 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 of the 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”)Citigroup Global Markets Inc., except with respect to (i) for the issuance of shares of Common Stock upon pursuant to the exercise redemption of stock options outstanding as units of limited partnership interest in the Partnership ("Partnership Units") in accordance with the Third Amended and Restated Agreement of Limited Partnership of the date hereofPartnership, as amended and (ii) the issuance of shares of for options or Common Stock issued pursuant to stock option or stock options under any benefit plan of the Company existing on the date hereof, and purchase plans as described in the Final ProspectusProspectus or the Incorporated Documents.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To make any offer relating generally available to its shareholders as soon as practicable an earnings statement covering the Shares twelve-month period ending April 30, 1999 that would constitute an Issuer Free Writing Prospectus without shall satisfy the prior written consent provisions of Section 11(a) of the Placement AgentsAct, and to advise you in writing when such statement has been so made available.
(viiih) The Company will retain in accordance 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 record holders of Common Stock or furnished to or filed with the Rules Commission or any national securities exchange on which any class of securities of the Company is listed and Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiaries as you may reasonably request in writing.
(i) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel, the Company's accountants and include any Selling Shareholder's counsel (in addition to the appropriate legends as required by Company's counsel) in connection with the Rules registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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 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 Shareholders may otherwise have for allocation of process in any jurisdiction where it is not now so subjectsuch expenses among themselves.
(xij) The Company will To use its best efforts to cause list for quotation the Shares on the Nasdaq National Market and to be listed for trading on The Nasdaq Capital Market at use its best efforts to maintain the time listing of the ClosingShares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(xiik) 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 will not at prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents each Underwriter as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, during such period as the Final Prospectus would be is required by law to be delivered in connection with sales of the Shares Units by an underwriter Underwriter or a dealer in connection with (the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule"Prospectus Delivery Period"), file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Underwriters within a reasonable period of time prior to the filing thereof and the Placement Agents Underwriters shall not have reasonably objected thereto in good faith.
(iiib) The Company will notify the Placement Agents Underwriters promptly, and will, if requested, will confirm such notification advice in writing, (1i) when any post-effective amendment to the Registration Statement becomes effective; , (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3iii) 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, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (4iv) 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 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; misleading and (5v) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 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 Placement Agents Underwriters promptly of all such filings.
(ivc) IfThe Company has furnished, at any time when the Final Prospectus relating or will furnish, to the Shares is required 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 delivered under incorporated by reference into the Act Prospectus).
(whether physically or through compliance d) The Company will comply with Rule 172 under all the Act or any similar rule), the Company becomes aware of the occurrence provisions of any event as a result of which the Final Prospectus, as then amended or supplemented, would, undertakings contained in the reasonable judgment of counsel to the Company or counsel 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.
(e) On the Effective Date, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any and thereafter from time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationstime, the Company will promptly notify 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 Placement AgentsRepresentatives, without charge, such number as many copies of copies thereof the Prospectus or any amendment or supplement thereto as the Placement Agents Representatives may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement AgentsUnderwriters and by all dealers to whom the Units may be sold, both in connection with the offering or sale of the Units and during the Placement Agents agree to provide to each InvestorProspectus Delivery Period. If, prior during the Prospectus Delivery Period any event shall occur that in the judgment of the Company or counsel to the ClosingUnderwriters should be set forth in the Prospectus in order to make any statement therein, a copy in the light of the Final circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus and any amendments or supplements thereto.
(v) The to comply with law, the Company will furnish to the Placement Agents forthwith prepare and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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 duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Representatives, without charge, such number of copies thereof as the Representatives may reasonably request. The Company shall not file any electronic road showdocument under the Exchange Act before the termination of the offering of the Units by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus and if such document is not approved by the Representatives after reasonable notice thereof.
(ix) 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.”
(xf) Prior to the sale any public offering of the Shares to Units by the InvestorsUnderwriters, the Company will cooperate with the Placement Agents Representatives and their counsel to the Underwriters in connection with the registration or qualification of the Shares Units for offer and sale under the state securities or Blue Sky laws of such jurisdictions as the Placement Agents Representatives may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xig) During the period of two years commencing on the date of the Price Determination Agreement, the Company will furnish to the Representatives 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 a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will use make generally available to holders of its best efforts to cause securities as soon as may be practicable but in no event later than the Shares to be listed for trading on The Nasdaq Capital Market at the time last day of the Closing15th 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).
(xiii) 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 and any amendment or supplement to the Registration Statement or the Prospectus, (ii) the preparation and delivery of certificates representing the Units, (iii) the word processing, printing and reproduction of this Agreement, the Agreement Among Underwriters, any Dealer Agreements and any Underwriter's Questionnaire, (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 Units by the Underwriter or by dealers to whom Units may be sold, (v) the listing of the Corporate Units on the New York Stock Exchange, (vi) any filings required to be made by the Underwriters with the NASD, and the reasonable fees, disbursements and other charges of counsel to the Underwriters in connection therewith, (vii) the registration or qualification of the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f), including the reasonable fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (viii) counsel to the Company, (ix) the transfer agent for the Units and (x) the Accountant.
(j) 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 shares of Common Stock to facilitate the sale or resale of any of the SharesUnits.
(xiiik) The Company will notify promptly apply the Representative if net proceeds from the offering and sale of the Units to be sold by the Company ceases to be an Emerging Growth in the manner set forth in the Prospectus under "Use of Proceeds." The Company at any time prior to shall not invest, or otherwise use the later of (a) completion proceeds received by the Company from its sale of the period when Units in such a prospectus relating manner as would require the Company or any of its Subsidiaries to the Shares is required to be delivered register as an investment company under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Investment Company Act) and (b) completion of the Lock-Up Period.
(xivl) If The Company shall cause to be prepared and delivered, at any time following its expense, within one business day from the distribution effective date of any Written Testing-the-Waters Communicationthis Agreement, 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 the Representatives an "electronic Prospectus" to make be used by the statements therein Underwriters in connection with the light offering and sale of the circumstances under which they were made at such time not misleadingUnits. As used herein, the Company will term "electronic Prospectus" means a form of Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) notify promptly it shall be encoded in an electronic format, satisfactory to the Representative so Representatives, that use may be transmitted electronically by the Representatives and the other Underwriters to offerees and purchasers of the Written Testing-the-Waters Communication may cease until it is amended or supplementedUnits for at least the Prospectus Delivery Period; (ii) amend it shall disclose the same information as the paper Prospectus and Prospectus filed pursuant to XXXXX, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate narrative description or supplement the Written Testing-the-Waters Communication to correct tabular representation of such statement or omissionmaterial, as appropriate; and (iii) supply any amendment it shall be in or supplement convertible into a paper format or an electronic format, satisfactory to the Representative in such quantities Representatives, that will allow investors to store and have continuously ready access to the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet as may be reasonably requested.
(xv) a whole and for on-line time). The Company hereby confirms that it has included or will not, directly or indirectly, without include in the prior written consent of the Placement Agents, offer Prospectus filed pursuant to sell, sell, contract to sell, grant any option or warrant to purchase, make any short sale, XXXXX 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 of with the 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, Commission and (ii) the issuance of shares of 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 Registration Statement at the Representative agrees to waive time it was declared effective an undertaking that, upon receipt of a request by an investor or release any officer his or director of her representative within the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii)Prospectus Delivery Period, the Company will announce shall transmit or cause to be transmitted promptly, without charge, a paper copy of the impending release or waiver by press release through a major news services at least two business days before the effective date of such release or waiverProspectus.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as follows:
(ia) 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 the Placement AgentsUnderwriters, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Underwriters promptly following such filing.
(iib) 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 Agreement (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 the Placement Agents Underwriters within a reasonable period of time prior to the filing thereof and the Placement Agents Underwriters shall not have reasonably objected thereto in good faith.
(iiic) The Company will notify the Placement Agents Underwriters promptly, and will, if requested, confirm such notification in writing, : (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) 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; (4) 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 (5) 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 or in connection with sales of Common Stock pursuant to market making activities by The 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 430A under the Act430A, 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 Placement Agents Underwriters promptly of all such filings.
(ivd) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel to the Placement AgentsUnderwriters, 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 counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsUnderwriters, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents 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 Placement AgentsUnderwriters, without charge, such number of copies thereof as the Placement Agents Underwriters may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement AgentsUnderwriters, and the Placement Agents Underwriters agree to provide to each Investor, prior to the Closing, a copy of the Final Prospectus and any amendments or supplements thereto.
(ve) The Company will furnish to the Placement Agents Underwriters and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents Underwriters may reasonably request.
(vif) 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.
(viii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement AgentsUnderwriters.
(viiij) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xk) Prior to the sale of the Shares to the Investors, the Company will cooperate with the Placement Agents Underwriters and 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 the Placement Agents Underwriters may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xil) 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.”
(m) The Company will use its reasonable best efforts to cause ensure that the Shares to be are listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xiin) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xvo) The Company will not, directly or indirectly, without the prior written consent of the Placement AgentsUnderwriters, 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 of the 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 Shares to be sold hereunder, (ii) the issuance of shares of Common Stock upon the exercise of stock options and warrants outstanding as of the date hereof, hereof and (ii) the issuance of shares 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.
, (xviiii) The the issuance 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 agrees of any registration statement on Form S-8 or a successor form thereto, 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 if recipients of such shares of Common Stock agree to be bound by the terms of the lock-up letter described in Section 7(xi) hereof and the sum of the aggregate number of shares of Common Stock so issued shall not exceed 10% of the total outstanding shares of Common Stock outstanding immediately following the consummation of this offering of Shares. If the Representative agrees to waive or release any officer or director of the Company Lock-Up Securities from the lockLock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii)Up Period, the Company will announce the impending release or waiver by press release through a major news services service at least two business days before the effective date of such release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with each of the Placement Agents several Underwriters as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, during from the Execution Date until the end of such period as the Final Prospectus would be is required by law to be delivered in connection with sales of the Shares Securities by an underwriter Underwriter or dealer in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)dealer, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy draft thereof shall first have been submitted to the Placement Agents Representatives within a reasonable period of time prior to the filing thereof and the Placement Agents Representatives shall not have reasonably objected thereto in good faith.
(iiib) The Company will notify the Placement Agents Representatives promptly, and will, if requested, will confirm such notification advice in writing, (1i) when any post-effective amendment to the Registration Statement becomes effective; , (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3iii) 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, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (4iv) 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 requires the Company to file an amendment or supplement to 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 (5v) of receipt by the Company Company, or any representatives or attorney of the Company, of any notification with respect other communication from the Commission relating to the Registration Statement, the Basic Prospectus, any suspension Preliminary Prospectus or the Final Prospectus or the offering of the qualification of the Shares for offer and sale in any jurisdictionSecurities. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(vc) The Company will furnish to the Placement Agents and their counselRepresentatives, without charge (a) charge, one conformed complete copy 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 (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Final Prospectus), and will upon request make available to the Representatives, without charge, for transmittal to each of the other Underwriters, additional copies of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits and documents incorporated by reference therein.
(bd) 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 Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Underwriters, without charge, as many copies of each Issuer Free Writing Prospectusthe Final Prospectus or any supplement thereto, as the Representatives may reasonably request. The Company consents to the use of any Preliminary Prospectus or and the Final Prospectus or any amendment or supplement thereto as by the Placement Agents several Underwriters and by all dealers to whom the Securities may reasonably request.
(vi) The Company will comply with all the undertakings contained be sold, both in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance connection with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) The Company will apply the net proceeds from the offering and or sale of the Shares Securities and for any period of time thereafter during which a prospectus is required by law to be delivered in connection therewith. If during such period of time, any event shall occur which in the manner judgment of the Company or counsel to the Underwriters should be set forth in the Final Prospectus in order to make any statement therein, in the light of the circumstances under which it was made when delivered, not misleading, or if it is necessary to supplement the Final Prospectus to comply with law, the Company will forthwith prepare and duly file with the Commission an appropriate supplement thereto or a document under the caption “Use Exchange Act deemed to be incorporated therein, and will deliver to each of Proceedsthe 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 offering of the Securities by the Underwriters if such document would be deemed to be incorporated by reference into any Preliminary Prospectus or the Final Prospectus, unless a draft thereof shall first have been submitted to the Representatives within a reasonable period of time prior to the filing thereof and the Representatives shall not have objected thereto in good faith.”
(xf) Prior to the sale any public offering of the Shares to Securities and the InvestorsIssuable Common Stock by the Underwriters, the Company will cooperate with the Placement Agents Representatives and their counsel to the Underwriters in connection with the registration or qualification of the Shares Securities and the Issuable Common Stock for offer and sale under the state securities or Blue Sky blue sky laws of such United States jurisdictions and similar laws of such foreign jurisdictions as the Placement Agents Representatives may reasonably request, and will maintain such qualifications in effect so long as required for the distribution of the Securities and the Issuable Common Stock; 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 general taxation in any jurisdiction where it is not now so subject.
(xig) During the period of five years commencing on the Effective Date, the Company will make available 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 make available 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 use make generally available to holders of its best efforts to cause securities as soon as may be practicable but in no event later than the Shares to be listed for trading on The Nasdaq Capital Market at the time last day of the Closingfifteenth full calendar month following the calendar quarter in which the Execution Date falls, an earning statement (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after the Effective Date, within the meaning of and satisfying the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(xiii) 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 relating to (i) the preparation, printing and filing of the Registration Statement and exhibits thereto, the Basic Prospectus, any Preliminary Prospectus, the Final Prospectus and any amendment or supplement to the Registration Statement or the Final Prospectus, (ii) the preparation and delivery of certificates representing the Securities and the Issuable Common Stock, (iii) the printing of this Agreement, any agreement among underwriters, any dealer agreements and any underwriters' questionnaire, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus and the Final Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the 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 registration or qualification of the Securities and the Issuable Common Stock for offer and sale under the securities or blue sky laws of such United States jurisdictions and similar laws of such foreign jurisdictions designated pursuant to Section 4(f) hereof, including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final blue sky memoranda, (vii) counsel to the Company, (viii) the transfer agent and registrar for the Issuable Common Stock, (ix) the rating of the Securities by one or more rating agencies, (x) the Trustee, the Purchase Contract Agent, the Collateral Agent and the Remarketing Agent and any agent thereof and the fees, disbursements and other charges of counsel thereof in connection with the Transaction Documents and the Securities and (xi) the listing of the Securities on the New York Stock Exchange (the "NYSE").
(j) If this Agreement shall be terminated for any reason (other than pursuant to Section 7 hereof) or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will reimburse the several Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of counsel to the Underwriters) reasonably incurred by them in connection herewith.
(k) 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 Sharesdescribed in Section 3(x) hereof.
(xiiil) The Company will notify promptly apply the Representative if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion offering and sale of the period when a prospectus relating to Securities in the Shares is required to be delivered manner set forth in the Final Prospectus under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion "Use of the Lock-Up PeriodProceeds".
(xivm) If at any time following During a period of 90 days from the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light date of the circumstances under which they were made at such time not misleadingFinal Prospectus, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 AgentsRepresentatives, offer to selldirectly or indirectly, (i) offer, pledge, sell, contract to sell, grant sell any option or warrant contract to purchase, make purchase any short sale, option or otherwise dispose of (or announce any offer, salecontract to sell, grant of any option option, right or warrant to purchase or lend or otherwise transfer or dispose of any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap, or any other disposition)agreement or any transaction, that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities and the Issuable Common Stock, (B) any shares of capital stock of Common Stock issued by the Company upon a stock split effected by means of a stock dividend, the exercise of an option or securities convertible intowarrant or the conversion or exchange of a security outstanding on the date hereof, or exchangeable or exercisable for, (C) any shares of capital stock Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company, (D) any shares of Common Stock issued pursuant to any nonemployee director stock plan, any dividend reinvestment plan or any stock purchase plan in effect on the “Lock-Up Securities”date of the filing of the Registration Statement or (E) for issuances of Common Stock pursuant to the Company's rights plan in effect on the date hereof. For a period of 180 90 days after from the date of this Agreement (the “Lock-Up Period”)Final Prospectus, except with respect to (i) the issuance Company will maintain a register of the sale or other transfer of shares of Common Stock upon by the exercise persons listed on Schedule III hereto pursuant to the lock-up agreements of stock options outstanding as each such person entered into in connection with the offering of the date hereof, and (ii) the issuance Securities to ensure that no more than an aggregate of 1,500,000 shares of Common Stock or stock options are sold pursuant to all such lock-up agreements under the circumstances described therein.
(n) The Company will reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Issuable Common Stock for the purpose of enabling the Company to satisfy any benefit plan obligations to issue shares of the Issuable Common Stock pursuant to the Purchase Contracts.
(o) The Company existing on will use its best efforts to cause the date hereof, and described Corporate Units (as such term is defined in the Final Prospectus) and the Issuable Common Stock to be listed for trading on the NYSE by the Closing Date.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents you as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company shall use its best efforts to cause the Registration Statement and any amendments to become effective as promptly as practicable and will notnot at any time, during such period as whether before or after the Final Prospectus would be required by law to be delivered in connection with sales effective date of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Registration Statement, file any amendment or supplement to the Registration Statement or supplement to the Final 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 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 Placement Agents within a reasonable period of time prior to Company), or which is not in compliance with the filing thereof Act, the Exchange Act, or the Rules and Regulations. As soon as the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company is advised or obtains knowledge thereof, the Company will notify the Placement Agents promptlyadvise you, and will, if requestedas soon as practicable, confirm such notification in writing, (1i) 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; , (2) 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; (3ii) 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 Prospectusinitiation, or the initiation threatening, of any proceedings for that purpose or the threat thereof; (4) 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 (5) 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 Shares 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 hereby initiation, or in connection with sales the threatening, of Common Stock pursuant 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 market making activities by The Representativethe Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or any state Shares 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 any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A 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 Placement Agents promptly of all such filingsor suspension.
(ivb) IfThe Company will furnish to you, at without charge, three signed copies of the Registration Statement and any time when the Final Prospectus relating 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 amendment or supplement to which you shall reasonably object in writing or which is not in compliance with the Act.
(d) From the date hereof, and thereafter from time to time, the Company will deliver to you, without charge, as many copies of the Prospectus, or any 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 Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company becomes aware in connection therewith. If during such period of the occurrence of time any event as a result of shall occur which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or your counsel to should be set forth in the Placement Agents, 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 made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationslaw, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance thereto and will deliver to the Placement Agentsyou, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents you may reasonably request.
(vie) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make Prior to any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) The Company will apply the net proceeds from the public 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 Investorsby you, the Company will cooperate with the Placement Agents you and their 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 you request. The Company will pay all reasonable fees and expenses (including reasonable fees and expenses of counsel) relating to qualification of the Placement Agents Shares under such Shares 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 request; provideddesignate, 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 Shares 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.
(xif) The Company will pay all expenses in connection with (1) the 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 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 specified in the Prospectus under the caption "Use of Proceeds."
(h) The Company will appoint and retain, while any of the 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 necessary. As of the date of this Agreement, the transfer agent for the Shares of the Company is Oxford Transfer and Registrar, 300 X.X. Xxxxx, #1120, Portland, OR 97204.
(i) The Company shall utilize its best efforts to cause obtain the listing of the Shares to be listed for trading on The Nasdaq Capital the NASDAQ Small Cap Market at the time of the Closingsystem.
(xiij) The Neither the Company nor any of the Subsidiaries nor any of their respective executive officers, directors, principal stockholders or affiliates (within the meaning of the Rules and Regulations) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock in violation 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusExchange Act.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Subject to the terms and conditions hereof (including, for avoidance of doubt, clause (ii) of the last paragraph of Section 8), for so long as this Agreement has not been terminated with respect to all Support Parties upon the occurrence of one or more Support Termination Events (as defined in Section 8 below) and except as expressly released by each Support Party in writing from any of the following obligations, the Company covenants and agrees with the Placement Agents as followsagrees:
(ia) The Registration Statement has become effective, to use commercially reasonable best efforts to commence the Exchange Offer and if Rule 430A under Consent Solicitation by no later than 11:59 p.m. New York City time on the Act is used or Commencement Date;
(b) to use commercially reasonable best efforts to obtain the filing successful consummation of the Final Prospectus Exchange Offer and Consent Solicitation by 11:59 p.m. New York City time on the date that is otherwise required under Rule 424(b) under 20 business days after the ActCommencement Date, including, without limitation, using commercially reasonable best efforts to perform in all material respects the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) 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; (4) of becoming aware of the occurrence of any event that in the judgment covenants of the Company makes contained in this Agreement and to cause the conditions to the Exchange Offer and Consent Solicitation that are within its control to be satisfied;
(c) to work cooperatively and to negotiate in good faith with the Support Parties and their advisors to prepare and execute any statement made in documentation necessary (including the Registration Statement or Transaction Documents);
(d) to provide the Final Prospectus untrue in any material respect or that requires advisors to the making Support Parties [(including the Legal Advisor (as defined below))] reasonable advance notice of any changes in the Registration Statement or the Final Prospectus in order and opportunity to make the statements thereinreview and comment on all Transaction Documents and related notices and instruments (including, in light of the circumstances in which they are madeeach case, not misleading; and (5) 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.), and, without limiting Section 1(c), to give due consideration to their requested comments and revisions thereto;
(ve) The Company will furnish to the Placement Agents and their counselnot amend or supplement any Transaction Document except in accordance with this Agreement;
(f) to refrain from (i) taking, without charge (a) one conformed copy recommending, proposing, supporting, soliciting, consenting to or participating in any action not required by law that is inconsistent in any material respect with, or that would materially delay or impede approval, execution of documentation for, or implementation or consummation of the Registration Statement as originally filed Exchange Offer and Consent Solicitation, or that is otherwise inconsistent in any material respect with the Commission and each amendment theretoexpress terms of this Agreement, including financial statements and schedules(ii) directly or indirectly, and all exhibits theretoseeking, proposing, supporting, soliciting, encouraging, consenting to, or participating in the formulation of any plan or proposal to restructure the Company or the Company or any of the Company’s subsidiaries and (biii) so long as a prospectus relating initiating any proceeding under any bankruptcy or insolvency law;
(g) to disclose by no later than the Shares is required to be delivered under Commencement Date (the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule“Cleansing Date”), as many copies of by press release, SEC filing or by other public disclosure any then-material nonpublic information (“MNPI”) theretofore disclosed by the Company or its representatives to any Support Parties who have agreed to receive private information from the Company (the “Undisclosed Information”), unless each Issuer Free Writing ProspectusSupport Party who has received such Undisclosed Information has agreed to waive this provision or extend the Cleansing Date; provided, Preliminary Prospectus or however, that (i) the Final Prospectus or Company may not provide MNPI to any amendment or supplement thereto as the Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus Support Party without the prior written consent of the Placement Agents.
agreement (viiiwhich may be by email) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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, Support Party and (ii) the issuance of shares of Common Stock Company may provide MNPI to [any legal counsel] [(“the “Legal Advisor”)] so long as any such information is marked “Limited Distribution Information; For Professional Eyes Only” or stock options under any benefit plan of otherwise clearly indicates that such information may contain MNPI. Prior to the Company existing on the date hereof, and described in the Final Prospectus.
(xvi) The Company agrees that if the Representative agrees providing any MNPI to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii)Support Party, the Company will announce and such Support Party shall agree on commercially reasonable terms for the impending release or waiver by press release through a major news services at least two business days before the effective date confidentiality and disclosure of such release MNPI, consistent with the prior agreements between the Company and the Support Parties relating to such matters; [and]
(h) [to pay the reasonable and documented fees and expenses of the Legal Advisor for acting as counsel to the Support Parties in connection with the Exchange Offer and Consent Solicitation through the Settlement Date, which fees are due and owing upon the earlier to occur of (i) the termination of this Agreement or waiver(ii) the Settlement Date; provided that such fees shall not be due and owing earlier than the third business day after such fees and expenses are invoiced to the Company; provided further, that the requirement that such fees and expenses be documented shall be satisfied if the applicable Legal Advisor provides the Company with summary invoices (which, for the avoidance of doubt, shall not be required to include individual time entries or detail); provided further, that the aggregate amount of all such fees and expenses payable under this Section 7(h), shall not exceed $[•], subject to any increases as mutually agreed by the Company and the Support Parties; and
(i) that to the extent the Company or any of its Affiliates is or becomes a party to any agreement, including any letter agreements, (or any amendment thereto) with any holder of Outstanding Notes or such holder’s Affiliates that (x) provides for such holder’s participation (directly or indirectly) in and/or support of the Exchange Offer and (y) contains any terms more favorable to such holder than the terms hereof are to the Support Parties, this Agreement shall be deemed to be amended without the action of any Person to incorporate such more favorable terms, and the Company shall promptly provide written notice of such amendment to the Support Parties, provided, however, this provision does not apply to any terms relating to reimbursement, if any, of legal fees of counsel.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents each of you as ------------------------- follows:
(ia) 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 under or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActNotes may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject endeavor to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post- effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement or Statement, any amendment or supplements to the Final Prepricing Prospectus or any Issuer Free Writing the Prospectus or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Notes for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 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) five copies of the exhibits to the Incorporated Documents.
(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 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 omitted any information from delivered to you, without charge, in such quantities as you have requested, copies of each form of the Registration StatementPrepricing Prospectus. The Company consents to the use, pursuant to Rule 430A under the Act, 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 Notes are offered by you and by dealers, prior to said Rule 430A and to notify the Placement Agents promptly date of all such filingsthe Prospectus, of each Prepricing Prospectus so furnished by the Company.
(ivf) 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 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 Prospectus (and of any time when the Final Prospectus relating amendment or supplement thereto) as you may reasonably request. The Company consents to the Shares 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 Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes 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 Act Prospectus (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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleadingProspectus (or to file under the Exchange Act any document which, or if for any other reason it is necessaryupon filing, becomes an Incorporated Document) in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement order to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents and will promptly prepare and provisions of paragraph (d) above, file with the CommissionCommission an appropriate supplement or amendment thereto (or to such document), at the Company’s expense, an amendment and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance Underwriters and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof as thereof. In the Placement Agents may reasonably request. The event that the Company consents and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the use of the Final Prospectus or any proposed amendment or supplement thereto by the Placement 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 theretosupplement.
(vg) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents you and their with your counsel in connection with the registration or qualification of 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 the Placement Agents you may reasonably requestdesignate 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 Notes, in any jurisdiction where it is not now so subject.
(xih) The Company will use make generally available to its best efforts to cause security holders a consolidated earnings statement, which need not be audited, covering a twelve month period commencing after the Shares to be listed for trading on The Nasdaq Capital Market at the time effective date of the ClosingRegistration 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 and Rule 158 thereunder.
(xiii) 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 you 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 reasonable fees and expenses of your counsel) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Notes substantially in accordance with the description set forth in the Prospectus.
(l) 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.
(m) The Company will not at sell, contract to sell or otherwise dispose of any time, directly Common Stock or indirectly, take any action intendedsecurities convertible into or exercisable or exchangeable for Common Stock, or which might reasonably be expectedgrant any options or warrants to purchase Common Stock, to cause or result in, or which will constitute, stabilization for a period of 120 days after the price of the Shares to facilitate the sale or resale of any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xv) The Company will not, directly or indirectlydate hereof, without the prior written consent of Xxxxx Xxxxxx Inc., except for sales to the Placement Agents, offer Underwriters pursuant to sell, sell, contract to sell, grant any option or warrant to purchase, make any short sale, or otherwise dispose this Agreement and issuances of (or announce any offer, sale, grant of any option or warrant to purchase or other disposition), any shares of capital stock Common Stock upon conversion of the 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 Notes. The foregoing sentence shall not apply to (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding under the Company's 1994 Stock Option Plan, as of amended and restated (the date hereof, "1994 Plan") or the Company's 1995 Non-Employee Director Stock Option Plan (the "1995 Plan") and (ii) the issuance grant of options to purchase shares of Common Stock under the 1994 Plan or stock options under any benefit plan of the Company existing on the date hereof, and described 1995 Plan in the Final Prospectusan aggregate amount not to exceed 1,000,000 shares.
(xvin) The Company agrees that if the Representative agrees has furnished or will furnish to waive or release any officer or director of the Company from the you "lock-up restrictions up" letters, in form and substance satisfactory to you, signed by the officers, directors and stockholders listed on Schedule II hereto.
(o) Except as stated in this Agreement and in the letter agreements delivered pursuant to Section 7(xiii)Prepricing Prospectus and Prospectus, the Company has not taken, nor will announce 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 impending release price of the Common Stock to facilitate the sale or waiver by press release through a major news services at least two business days resale of the Notes.
(p) The Company will use its best efforts to have the Notes and the shares of Common Stock issuable upon conversion of the Notes listed, subject to notice of issuance, on the New York Stock Exchange on or before the effective date of such release or waiverClosing Date.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsRepresentatives:
(ia) The Registration Statement has become effective, and if Rule 430A under To advise 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Representatives promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by the Representatives, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware of the occurrence happening of any event that during the period referred to in the judgment of the Company Section 6(d) below which makes any statement of a material fact made in the Registration Statement or the Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 to the Company has omitted any information from Representatives 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 the Representatives and each Underwriter designated by the Representatives such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as the Representatives may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to the Representatives, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A under 424(b),under the Act; during the period specified in Section 6(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 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 which may be necessary or advisable in connection with the distribution of the Shares by the Underwriters, 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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) as such Underwriter or any similar ruledealer may reasonably request.
(e) If during the period specified in Section 6(d), the Company becomes aware of the occurrence of any event shall occur or condition shall exist as a result of which the Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xf) Prior to the sale any public offering of the Shares Shares, to the Investors, the Company will cooperate with the Placement Agents Representatives and their 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 the Placement Agents Underwriters 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 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.
(xig) The Company will use To mail and make generally available to its best efforts to cause stockholders as soon as practicable an earnings statement covering the Shares to be listed for trading on The Nasdaq Capital Market at twelve-month period ending ____________, 1998 that shall satisfy the time provisions of Section 11(a) of the ClosingAct, and to advise the Representatives in writing when such statement has been so made available.
(xiih) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of During the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 three years after the date of this Agreement (Agreement, to furnish to the “Lock-Up Period”), except with respect Representatives as soon as available copies of all reports or other communications furnished 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 record holders of Common Stock or stock options under furnished to or filed with the Commission or any benefit plan national securities exchange on which any class of securities of the Company existing on is listed and such other publicly available information concerning the date hereof, Company and described in its subsidiaries as the Final ProspectusRepresentatives may reasonably request.
(xvii) The Company agrees that if Whether or not the Representative agrees transactions contemplated in this Agreement are consummated or this Agreement is terminated, to waive pay or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant cause to Section 7(xiii), the Company 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 release or waiver.be paid all expenses incident to
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents Agent as follows:
(ia) 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 the Placement AgentsAgent (which approval shall not be unreasonably withheld or delayed), pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Agent promptly following such filing.
(iib) 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 Offered Securities by an underwriter underwriter, a dealer or dealer a placement agent in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Agreement, file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents Agent within a reasonable period of time prior to the filing thereof and the Placement Agents Agent shall not have reasonably objected thereto in good faith.
(iiic) The Company will notify the Placement Agents Agent promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (2) 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, but only during the period mentioned in Section 4(b); (3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration StatementStatement or the use of any Preliminary Prospectus, the Final Prospectus Base Prospectus, or any Issuer Free Writing 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); (4) of becoming aware of the occurrence of any event during the period mentioned in Section 4(b) 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 (5) of receipt by the Company 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents Agent promptly of all such filings.
(ivd) If, at any time when the Final a Prospectus relating to the Shares Offered Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Securities Act, 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 counsel to the Placement AgentsAgent, 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 counsel to the Placement AgentsAgent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsAgent, 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 the Placement Agents and 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 or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement AgentsAgent, without charge, such number of copies thereof as the Placement Agents Agent may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretoAgent.
(ve) The To the extent not available on XXXXX, the Company will furnish to the Placement Agents Agent and their its counsel, without charge (ai) one two conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (bii) so long as a prospectus relating to the Shares Offered Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Securities Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Agent may reasonably request.
(vif) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xg) Prior to the sale of the Shares Offered Securities to the Investors, the Company will cooperate with the Placement Agents Agent and their 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 the Placement Agents Agent may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xih) The Company will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus.
(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.”
(j) The Company will use its best efforts to cause ensure that the Shares to be listed for trading Offered Securities are traded on The the Nasdaq Capital Global Market at the time of the Closing.
(xiik) 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 SharesOffered Securities.
(xiiil) The Company will notify promptly the Representative if the Company ceases cause each of its executive officers and directors, whose names are set forth in Exhibit C hereto, to be an Emerging Growth Company at any time prior furnish to the later of (a) completion of Placement Agent, on or before the period when Closing Date, a prospectus relating to letter dated the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationdate hereof, 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 statements therein substantially in the light form of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company, Exhibit D hereto (the “Lock-Up SecuritiesAgreement”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement and issue stop transfer instructions to the transfer agent for the shares with respect to any transaction or contemplated transaction that would constitute a breach or default under the applicable Lock-Up Agreement.
(m) for For a period ending on the earlier of 180 (i) 90 days after the date hereof or (ii) the termination of this Agreement by the Placement Agent prior to the Closing (other than as a result of any breach of this Section 4(m)) (the “Lock-Up Period”), except the Company will not directly or indirectly, (1) offer to sell, hypothecate, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase (to the extent such option or contract to purchase is exercisable within one year from the Closing Date), purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, 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, with respect to, any shares of Common Stock, or any securities convertible into or exercisable or exchangeable for shares of Common Stock; (2) file or cause to become effective a registration statement under the Securities Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for shares of Common Stock or (3) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clauses (1), (2) or (3) above is to be settled by delivery of shares of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Placement Agent (which consent may be withheld in its sole discretion), other than (i) the Offered Securities to be sold hereunder, (ii) the issuance of employee stock options or shares of restricted stock pursuant to equity compensation plans described in the Registration Statement (excluding the exhibits thereto), the Pricing Disclosure Materials and the Prospectus, (iii) issuances of shares of Common Stock upon the exercise of stock options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), the Pricing Disclosure Materials and the Prospectus or upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date hereof, and of this Agreement; (iiiv) the issuance by the Company of any shares of Common Stock or stock options under any benefit plan securities convertible or exchangeable into shares of the Company existing on the date hereofCommon Stock as consideration for mergers, and described in the Final Prospectus.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii)acquisitions, the Company 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 release or waiver.other business
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(a) The Company will use commercially reasonable efforts to cause the Registration Statement to become effective and will advise you promptly and, if requested by you, will confirm such advice in writing (i) The when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective, and (ii) if Rule 430A under the Act is used employed, when the Prospectus or term sheet (as described in Rule 434(b) under the filing of the Final Prospectus is otherwise required under Act) has been timely filed pursuant to 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) of any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Final Registration Statement, any Prepricing Prospectus or any Issuer Free Writing the Prospectus or for additional information; , (3iv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, the Company will make every use commercially reasonable effort efforts to obtain the withdrawal of any such order at the earliest possible moment. If time.
(b) The Company will furnish to you, without charge, three 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 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 (with a reasonable opportunity to review such amendment or supplement) or to which you have reasonably objected after being so advised.
(d) Prior to the execution and delivery of this Agreement, the Company has omitted any information from 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 Registration StatementPrepricing Prospectus. The Company consents to the use, pursuant to Rule 430A under the Act, 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 Placement Agents promptly date of all such filingsthe Prospectus, of each Prepricing Prospectus so furnished by the Company.
(ive) IfAs 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, at the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any time when the Final Prospectus relating 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 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 Act Prospectus (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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify the Placement Agents and will promptly forthwith 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver furnish to the Placement Agentseach Underwriter and to each dealer who has previously requested Prospectuses, without charge, such reasonable number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretothereof.
(vf) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and counsel for the Placement Agents and their 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 the Placement Agents 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; 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.
(xig) The Company will use make generally available to its best efforts 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 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 of five years hereafter, the Company will furnish to cause you as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; and the Company will furnish to you (i) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or mailed to shareholders, 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 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 sale of the Shares to be listed for trading on The Nasdaq Capital Market at sold by it hereunder substantially in accordance with the time description set forth in the Prospectus under the caption "Use of Proceeds."
(k) If Rule 430A under the ClosingAct is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(xiil) The Company will not at offer, sell, contract to sell or otherwise dispose of any time, directly Common Stock or indirectly, take any action intendedrights to purchase Common Stock, or which might reasonably be expectedany securities convertible into or exercisable or exchangeable for shares of Common Stock except to the Underwriters pursuant to this Agreement, to cause or result in, or which will constitute, stabilization for a period of 180 days from the date of the price Prospectus without the prior written consent of the Shares Representatives; provided, however, that the Company may issue shares of Common Stock pursuant to facilitate the sale Combination Transactions (as defined in the Prospectus), pursuant to the Company's Long-Term Incentive Plan, and other employee benefit and compensation arrangements currently in effect or resale as consideration to sellers in connection with business acquisitions by the Company, but only if such sellers agree in writing not to offer, sell, contract to sell or otherwise dispose of any such shares of Common Stock for a period of 180 days from the date of the SharesProspectus.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xvm) The Company will not, directly or indirectly, without the prior written consent take any action which would constitute, or any action designed or which might reasonably be expected to cause or result in or constitute, under Act or otherwise, stabilization or manipulation 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 price of any option or warrant to purchase or other disposition), any shares of capital stock security of the Company to facilitate the sale or securities convertible into, or exchangeable or exercisable for, shares of capital stock resale 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusShares.
(xvin) If at any time during the 25-day period after the first date that any of the Shares are released by you for sale to the public, any publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock (including the Shares) has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith consult with you concerning the advisability and substance of, and, if appropriate, disseminate, a press release or other public statement responding to or commenting on such publication or event.
(o) The Company will maintain a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of the Nasdaq Stock 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.
(p) The Company agrees that if any dispute hereunder shall be litigated solely in the Representative Circuit Court of the State of Florida in Pinellas County, Florida or in the United States District Court for the Middle District of Florida, Tampa Division, and further agrees to waive or release any officer or director of submit itself to the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company will announce the impending release or waiver by press release through a major news services at least two business days before the effective date personal jurisdiction of such release or waivercourts.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 (4) 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) as such Underwriter or any similar ruledealer may reasonably request.
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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To mail and make any offer relating generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period beginning after the effective date of the Registration Statement 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 as soon as available copies of all reports or other communications furnished to the Shares that would constitute an Issuer Free Writing Prospectus without record holders of Common Stock or furnished to or filed with the prior written consent Commission or any national securities exchange on which any class of securities of the Placement AgentsCompany is listed and such other publicly available information concerning the Company 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: (viiii) The Company will retain the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in accordance addition to the Company's counsel) in connection with the Rules registration and Regulations all Issuer Free Writing Prospectuses not required to be filed, and timely file and include delivery of 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 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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 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.
(xij) The Company will To use its best efforts to cause list for quotation the Shares on the 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 listed for trading on The Nasdaq Capital Market 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 Closing.
(xii) The Company will effectiveness of this Agreement does 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 cover all of the Shares.
(xiii, to file a Rule 462(b) The Company will notify promptly Registration Statement with the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as follows:each of you: -------------------------
(ia) The Registration Statement has become effectiveTo file the Prospectus, which shall be in a form reasonably satisfactory to you, with the Commission within the time periods specified by Rule 424; and if Rule 430A under to file promptly all reports and any definitive proxy or information statements required to be filed by the Act is used Company with the Commission pursuant to Section 13(a), 13(c), 14 or the filing 15(d) 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 Exchange Act has been used), subject subsequent to the prior approval date of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period Prospectus and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) The Company will not, during such period for so long as the Final Prospectus would be delivery of a prospectus is 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 or sale of the Securities; and to furnish copies of the Prospectus to the Underwriters in New York City prior to 5:00 p.m., New York City time, on the Business Day next succeeding the date of this Agreement (whether physically or through compliance with Rule 172 under in such quantities as 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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have Underwriters may reasonably objected thereto in good faithrequest.
(iiib) The Company will notify During the Placement Agents promptlyperiod referred to in paragraph (e) below, and willto advise you promptly and, if requestedrequested by you, to confirm such notification advice in writing, (1i) when any post-effective amendment to the Registration Statement has been filed or becomes effective; effective after the date of this Agreement, (2ii) when any supplement to the Prospectus or any amended Prospectus has been filed, (iii) of any request by the Commission for any amendments amend- ments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3iv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Securities for offering or sale in any Issuer Free Writing Prospectusjurisdiction, or the initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (4v) of becoming aware 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 Final Prospectus untrue in any material respect or that which requires the making of any additions to or 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, therein not misleading; and . During the period referred to in paragraph (5e) below, the Company will use its reasonable best efforts to prevent the issuance of receipt any stop order by the Company of any notification with respect to any suspension of the qualification of the Shares for offer Commission, 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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) To furnish to you one signed copy and three conformed copies of the Company has omitted Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits thereto and documents incorporated by reference therein, 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 thereto but including the documents incorporated by reference therein, as you may reasonably request.
(d) During the period specified in paragraph (e) below, not to file any information from amendment or supplement to the Registration Statement, pursuant whether before or after the time when it becomes effective, or to Rule 430A under make any amendment or supplement to the ActProspectus of which you shall not previously have been advised and given the opportunity to review, it will or to which you shall reasonably object; and to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Securities by you, and, if applicable, to use its reasonable best efforts to comply with cause the provisions of and make all requisite filings with the Commission pursuant same to said Rule 430A and to notify the Placement Agents become promptly of all such filingseffective.
(ive) IfPromptly after the Registration Statement becomes effective, at any and from time when to time thereafter for such period as in the Final Prospectus relating to opinion of counsel for the Shares Under writers a prospectus is required by law to be delivered under the Act (whether physically in connection with sales by an Underwriter or through compliance with Rule 172 under the Act or any similar rule)a dealer, the Company becomes aware to furnish to each Underwriter and 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.
(f) If during the period specified in paragraph (e) above, any event shall occur as a result of which the Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final Prospectus so that corrects the statements 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 law, and to furnish to each Underwriter and to such statement or omission or effects such compliance and will deliver to the Placement Agents, without chargedealers as you shall specify, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealers may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xg) Prior to the sale any public offering of the Shares Securities, to the Investors, the Company will cooperate with you and counsel for the Placement Agents and their counsel Underwriters in connection with the registration or qualification of the Shares Securities 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 qualification in effect so long as required for distribution of the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated Securities and to qualify file such consents 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 as may be necessary in any jurisdiction where it is not now so subjectorder to effect such registration or qualification.
(xih) The Company will use To mail and make generally available to its best efforts securityholders and to cause the Shares to be listed for trading on The Nasdaq Capital Market Underwriters as soon as reasonably practicable an earnings statement covering a period of at least twelve months beginning with the time first fiscal quarter of the ClosingCompany occurring after the effective date of the Registration Statement, which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder, and to advise you in writing when such statement has been so made available.
(xiii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of During the period when a prospectus relating beginning on the date hereof and continuing to and including the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time Business Day following the distribution of any Written Testing-the-Waters CommunicationClosing Date, 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 not to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 selloffer, sell, contract to sell, grant any option or warrant to purchase, make any short sale, sell or otherwise dispose of any debt securities of or guaranteed by the Company which are substantially similar to the Securities.
(j) To use the net proceeds received by the Company from the sale of the Securities pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds."
(k) Whether or announce any offernot the transactions contemplated by this Agreement are consummated or this Agreement is terminated, saleto pay all costs, grant expenses, fees and taxes incident to the performance of any option or warrant its obligations hereunder (excluding, without limitation, fees and disbursements of counsel for the Underwriters other than pursuant to purchase or other dispositionclauses (iv) and (v) below), any shares of capital stock including without limiting the generality of the Company or securities convertible intoforegoing, 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 all costs and expenses incident to (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding as preparation, issuance, and delivery of the date hereofcertificates for the Securities, and including any expenses of the Trustee (ii) the issuance of shares of Common Stock or stock options preparation, printing, filing and distribution under any benefit plan the Securities Act of the Company existing on Registration Statement (including financial statements and exhibits), each preliminary prospectus and all amendments and supplements to any of them prior to or during the date hereofperiod specified in paragraph (e) above, (iii) the printing and delivery of the Prospectus and any preliminary prospectus and all amendments or supplements to it during the period specified in paragraph (e) above, (iv) the printing (including word processing and duplication costs) and delivery of this Agreement, the Indenture, Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery of the Blue Sky Memorandum), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the National Association of Securities Dealers, Inc. in connection with the offering, (vii) 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 Securities by the Underwriters or by dealers to whom Securities may be sold, and described (viii) the rating of the Securities including, without limitation, fees payable to rating agencies in the Final Prospectusconnection therewith.
(xvil) The To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company agrees that if prior to the Representative agrees Closing Date and to waive or release any officer or director satisfy all conditions precedent to the delivery of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiverSecurities.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several ------------------------- Underwriters as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, cause the Prospectus Supplement to be filed as required by Section 3(a) hereof (but only if you have not reasonably objected thereto by notice to the Company after having been furnished a copy within a reasonable time prior to filing) and will notify you promptly of such filing. The Company will not during such period as the Final 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)dealer, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Representatives within a reasonable period of time prior to the filing thereof and the Placement Agents Representatives shall not have reasonably objected thereto in good faith.
(iiib) The Company will notify the Placement Agents Representatives promptly, and will, if requested, will confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; , (2) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3) 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, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (4) 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 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; misleading and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 Representatives without charge two signed copies of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), and will furnish to the Representatives upon request and without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company has omitted will comply with all the provisions of any information from undertakings contained in the Registration Statement, pursuant to Rule 430A 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 Placement Agents promptly of all such filings.
(ive) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the 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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 each of the Placement AgentsUnderwriters, without charge, such number as many copies of copies thereof the Prospectus containing the Prospectus Supplement or any amendment or supplement thereto as the Placement Agents Representatives may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement Agentsseveral Underwriters and by all dealers to whom the Shares may be sold, and both in connection with the Placement Agents agree to provide to each Investor, prior to the Closing, a copy offering or sale of the Final Shares and for any period of time thereafter during which the Prospectus and any amendments or supplements thereto.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares 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 Act (whether physically or through compliance Prospectus to comply with Rule 172 under law, 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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules forthwith prepare and Regulations all Issuer Free Writing Prospectuses not required to be 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 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 shall not file any electronic road showdocument 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.
(ixf) The Company will apply the net proceeds from the Prior to any public 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 the Placement Agents Representatives and their 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 the Placement Agents Representatives may reasonably requestrequest including, without 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.
(xig) 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 use make generally available to holders of its best efforts to cause securities as soon as may be practicable but in no event later than the Shares to be listed for trading on The Nasdaq Capital Market at the time last day of the Closingfifteenth 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).
(xiii) 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 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 registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdic tions designated pursuant to Section 4(f), including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (8) counsel to the Company and any surveyors, engineers, appraisers, photographers, accountants and other professionals engaged by or on behalf of the 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 potential investors and the hotel, travel and other expenses of the Company's employees in connection with any such ``road show'' or presentation.
(j) 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 reimburse the several Underwriters for all out-of- pocket expenses (including the fees, disbursements and other charges of counsel to the Underwriters) reasonably incurred by them in connection herewith.
(k) 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.
(xiiil) The Company will notify promptly apply the Representative if net proceeds from the offering and sale of the Shares to be sold by the Company ceases to be an Emerging Growth Company at any time prior to in the later manner set forth in the Prospectus under ``Use of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up PeriodProceeds.''
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xvm) The Company will not, directly or indirectly, without continue to elect to qualify as a ``real estate investment trust'' under 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 of the 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 hereofCode, and (ii) will use its best efforts to continue to meet the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectusrequirements to qualify as a ``real estate investment trust.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.''
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(ia) 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 under or a post-effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject endeavor to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to become effective as soon as reasonably practicable and will advise you promptly and, if requested by you, will confirm such advice in writing, when it receives notice that the Registration Statement becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of its receipt of notice of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement or Statement, any amendment or supplements to the Final Prepricing Prospectus or any Issuer Free Writing the Prospectus or for additional information; (3ii) 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 Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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 (4f) 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 Final Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making mak- ing of any additions to or changes in the Registration Statement or the Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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) such number of signed copies of the Company has omitted any information from the Registration Statement, pursuant to Rule 430A under the Act, 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 as you may reasonably request, (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 Placement Agents promptly of all such filingsIncorporated Documents.
(ivd) If, at The Company will not (i) file any time when the Final Prospectus relating amendment to the Shares 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, in the opinion of counsel for the Underwriters, a Prospectus 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 (whether physically the "Exchange Act") without delivering a copy of such information, documents or through compliance reports to you, as representatives of the Underwriters, prior to or concurrently with Rule 172 under such filing.
(e) Prior to the Act or any similar rule)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 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 event amendment or supplement thereto) as a result 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 Final ProspectusShares 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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents and will promptly prepare and provisions of paragraph (d) above, file with the CommissionCommission an appropriate supplement or amendment thereto, at the Company’s expense, an amendment and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance Underwriters and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as the Placement Agents may reasonably request. The Company consents to the use Representatives of the Final several Underwriters, agree that the Prospectus should be amended or any supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement thereto by the Placement 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 theretosupplement.
(vg) The Company will furnish to cooperate with you and with counsel for the Placement Agents and their counsel, without charge (a) one conformed copy of the Registration Statement as originally filed Underwriters in connection with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), as many copies notice of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) The Company will apply the net proceeds from the offering and sale of the Shares in by the manner set forth in the Final Prospectus several Underwriters and by dealers under the caption “Use of Proceeds.”
(x) Prior to the sale of the Shares to the Investors, the Company will cooperate with the Placement Agents and 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 the Placement Agents you may reasonably requestdesignate; 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.
(xih) 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 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 sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth in the Prospectus.
(l) 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.
(m) Except as provided in this Agreement, the Company will not 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, for a period of 90 days after the date of the Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc.; PROVIDED that the Company shall be permitted to (i) grant options pursuant to the Xxxxxxxx Casting Corporation 1993 Incentive Stock Plan and the Xxxxxxxx Casting Corporation Non-Employee Director Option Plan and to issue Common Stock upon the exercise of any option granted under either such plan, (ii) issue Common Stock pursuant to the 1993 Xxxxxxxx Casting Corporation Employee Stock Purchase Plan and (iii) issue Common Stock pursuant to the Employee Stock Incentive Agreements to which the Company is a party on the date of this Agreement.
(n) The Company has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by each of the current officers and directors of the Company set forth on Schedule II hereto.
(o) Except as stated in this Agreement and in the Prepricing Prospectus and 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.
(p) The Company will use its best efforts to cause have the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 which it agrees to sell under this Agreement listed, subject to notice of stock options outstanding as of the date hereofissuance, and (ii) the issuance of shares of 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 New York Stock Exchange on or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiverClosing Date. 6.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents Agent as follows:
(ia) 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 the Placement AgentsAgent (which approval shall not be unreasonably withheld or delayed), pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Agent promptly following such filing.
(iib) 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 Offered Securities by an underwriter underwriter, a dealer or dealer a placement agent in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Agreement, file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents Agent within a reasonable period of time prior to the filing thereof and the Placement Agents Agent shall not have reasonably objected thereto in good faith.
(iiic) The Company will notify the Placement Agents Agent promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (2) 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, but only during the period mentioned in Section 4(b); (3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration StatementStatement or the use of any Preliminary Prospectus, the Final Prospectus Base Prospectus, or any Issuer Free Writing 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); (4) of becoming aware of the occurrence of any event during the period mentioned in Section 4(b) 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 (5) of receipt by the Company 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents Agent promptly of all such filings.
(ivd) If, at any time when the Final a Prospectus relating to the Shares Offered Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, 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 counsel to the Placement AgentsAgent, 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 counsel to the Placement AgentsAgent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsAgent, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents and 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 or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement AgentsAgent, without charge, such number of copies thereof as the Placement Agents Agent may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretoAgent.
(ve) The Company will furnish to the Placement Agents Agent and their its counsel, without charge (ai) one two conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (bii) so long as a prospectus relating to the Shares Offered Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Agent may reasonably request.
(vif) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xg) Prior to the sale of the Shares Offered Securities to the Investors, the Company will cooperate with the Placement Agents Agent and their 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 the Placement Agents Agent may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xih) The Company will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus.
(i) [intentionally omitted]
(j) 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.”
(k) The Company will use its best efforts to cause ensure that the Shares to be listed for trading Offered Securities are quoted on The Nasdaq Capital Market the OTC Bulletin Board or traded on a national securities exchange at the time of the Closing.
(xiil) 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 SharesOffered Securities.
(xiiim) The Company will notify promptly the Representative if the Company ceases cause each of its executive officers and directors, and certain of its shareholders, whose names are set forth in Exhibit B hereto, to be an Emerging Growth Company at any time prior furnish to the later of (a) completion of Placement Agent, on or before the period when Closing Date, a prospectus relating to letter dated the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationdate hereof, 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 statements therein substantially in the light form of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company, Exhibit C hereto (the “Lock-Up SecuritiesAgreement”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement and issue stop transfer instructions to the transfer agent for the shares with respect to any transaction or contemplated transaction that would constitute a breach or default under the applicable Lock-Up Agreement.
(n) for For a period ending on the earlier of 180 (i) 90 days after the date hereof or (ii) the termination of this Agreement by the Placement Agent prior to the Closing (other than as a result of any breach of this Section 4(n)) (the “Lock-Up Period”), except the Company will not directly or indirectly, (1) offer to sell, hypothecate, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase (to the extent such option or contract to purchase is exercisable within one year from the Closing Date), purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, 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, with respect to, any shares of Common Stock, or any securities convertible into or exercisable or exchangeable for shares of Common Stock; (2) file or cause to become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for shares of Common Stock or (3) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clauses (1), (2) or (3) above is to be settled by delivery of shares of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Placement Agent (which consent may be withheld in its sole discretion), other than (i) the Offered Securities to be sold hereunder, (ii) the issuance of employee stock options or shares of restricted stock pursuant to equity compensation plans described in the Registration Statement (excluding the exhibits thereto), the Pricing Disclosure Materials and the Prospectus, (iii) issuances of shares of Common Stock upon the exercise of stock options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), the Pricing Disclosure Materials and the Prospectus or upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date hereofof this Agreement; (iv) except as disclosed in the Registration Statement, the Pricing Disclosure Materials and (ii) the Prospectus, the issuance by the Company of any shares of Common Stock or stock options under any benefit plan securities convertible or exchangeable into shares of Common Stock as consideration for mergers, acquisitions, other business combinations, or strategic alliances, occurring after the date of this Agreement; provided that each recipient of shares pursuant to this clause (iv) agrees that all such shares remain subject to restrictions substantially similar to those contained in this subsection 4(n); or (v) the purchase or sale of the Company’s securities pursuant to a plan, contract or instruction that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) that was in effect prior to the date hereof. Notwithstanding the foregoing, for the purpose of allowing the Placement Agent to comply with FINRA Rule 2711(f)(4), if (1) during the last 17 days of the Lock-Up Period, the Company existing releases earnings results or publicly announces other material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of the Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18 day period beginning on the date hereofof release of the earnings results or the public announcement regarding the material news or the occurrence of the material event, and described as applicable, unless the Placement Agent waives such extension in writing. The Placement Agent agrees to waive such extension if the Final Prospectus.
(xviprovisions of FINRA Rule 2711(f)(4) are not applicable to the Offering. The Company agrees that if not to accelerate the Representative agrees vesting of any option or warrant or the lapse of any repurchase right prior to waive or release any officer or director the expiration of the Company from Lock-Up Period, except in accordance with the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company will announce the impending release or waiver by press release through a major news services at least two business days before the effective date terms of such release or waiverany existing employment agreement.
Appears in 1 contract
Samples: Placement Agent Agreement (Premier Power Renewable Energy, Inc.)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, during such period as the Final Prospectus would be is 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 (whether physically or through compliance with Rule 172 under the Act or any similar rule)Shares, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iiib) The Company will notify the Placement Agents promptly, and will, if requested, will confirm such notification advice in writing, (1i) when any post-effective amendment to the Registration Statement relating to the sales of the Shares becomes effective; , (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; information relating to the sales of the Shares, (3iii) 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, Statement or the initiation of any proceedings for that purpose or the threat thereof; thereof relating to the sales of the Shares, (4iv) 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 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 the light of the circumstances in which they are made, not misleading; misleading in any material respect, and (5v) 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 preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus relating to the sales of the qualification of the Shares for offer and sale in any jurisdictionShares. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A under of the ActSecurities Act Rules and Regulations or has omitted any information from the Base Prospectus pursuant to Rule 430B or Rule 430C of the Securities Act 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 430A, Rule 430B or Rule 430C, as applicable, and to notify the Placement Agents promptly of all such filingsfilings to the extent related to the sale of the Shares. If the Company elects to rely upon Rule 462(b) under the Securities 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 Securities Act Rules and Regulations.
(ivc) IfThe Company will furnish to each Placement Agent, at without charge, one signed copy of each of the Registration Statement and of any time when the Final Prospectus post-effective amendment thereto relating to a sale of the Shares is required Shares, including financial statements and schedules, and all exhibits thereto and will furnish to be delivered under each Placement Agent, without charge, a copy of the Act Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
(whether physically or through compliance d) The Company will comply with Rule 172 under all the Act or provisions of any similar rule)undertakings contained in the Registration Statement.
(e) From time to time, 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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number as many copies of copies thereof the Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement Agents, and both in connection with the Placement Agents agree to provide to each Investor, prior to the Closing, a copy offering or sale of the Final Shares and for any period of time thereafter during which the Prospectus and is required by law to be delivered in connection therewith. If during such period of time any amendments event shall occur that in the judgment of the Company or supplements thereto.
(v) The Company will furnish counsel to the Placement Agents and their counselshould be set forth in the Prospectus in order to make any statement therein, without charge (a) one conformed copy in the light of the Registration Statement as originally filed circumstances under which it was made, not misleading in any material respects, 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 and each an appropriate supplement or amendment thereto, including financial statements and schedules, and all exhibits thereto, and (b) so long as a prospectus relating will deliver to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Placement Agents, as many without charge, such number of copies of each Issuer Free Writing Prospectus, Preliminary such supplement or amendment to the Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) . The Company will not make file any offer relating to document under the Shares that would constitute an Issuer Free Writing Prospectus without Exchange Act or the prior written consent Exchange Act Rules and Regulations before the termination of the offering of the Shares, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Lead Placement AgentsAgent after reasonable notice thereof.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xf) Prior to the sale any public offering of the Shares to the InvestorsShares, the Company will cooperate with the Placement Agents and their counsel to the Placement Agents 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which that would subject it to general service of process in any jurisdiction where it is not now so subject.
(xig) The Company will, so long as required under the Securities Act 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) During the period of one year commencing on the Closing Date, the Company will furnish or make available to the Placement Agents 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.
(i) The Company will use make generally available to holders of its best efforts to cause securities as soon as may be practicable, but in no event later than the Shares to Availability Date (as defined below), an earning statement (which need not be listed for trading on The Nasdaq Capital Market at audited but shall be in reasonable detail) covering a period of 12 months commencing after the time Effective Date that will satisfy the provisions of Section 11(a) of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion 158 of the Lock-Up Period.
(xiv) If at any time Securities Act Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 40th day after the end of the fourth fiscal quarter following the distribution of any Written Testing-the-Waters Communicationfiscal quarter that includes such Effective Date, any event occurs as a result of which except that if 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 fourth fiscal quarter is the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock last quarter of the Company’s fiscal year, (“Availability Date” means the “Lock-Up Securities”) for a period of 180 days 75th day 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company will announce the impending release or waiver by press release through a major news services at least two business days before the effective date end of such release or waiverfourth fiscal quarter.
Appears in 1 contract
Samples: Placement Agency Agreement (Sonus Pharmaceuticals Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(ia) The Registration Statement has become effectiveIf, and if Rule 430A under at 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)is executed and delivered, file any amendment or supplement to the Registration Statement or the Final Prospectus unless it is necessary for a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such 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 such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement Statement, the Preliminary Prospectus Supplement, the final Prospectus Supplement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final Prospectus in order the
(c) The Company will furnish to make the statements thereinyou, in light without charge (i) seven conformed copies of the circumstances in which they are made, not misleading; and (5) 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 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 430A under the Act, 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) seven copies of the exhibits to notify the Placement Agents promptly of all such filingsIncorporated Documents.
(ivd) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the The Company will promptly notify the Placement Agents and will promptly prepare and not file with the Commission, at the Company’s expense, an any amendment to the Registration Statement or an make any amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance and will deliver or, prior to the Placement Agentsend 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 number quantities as you have requested, copies of each form of the Preliminary Prospectus Supplement. 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 Preliminary Prospectus Supplement 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 thereof of the Prospectus (and of any amendment or supplement thereto) as the Placement Agents you may reasonably request. The Company consents to the use of the Final Prospectus or (and of any amendment or supplement thereto by thereto) in accordance with the Placement Agents, and the Placement Agents agree to provide to each Investor, prior to the Closing, a copy provisions of the Final Prospectus Act and any amendments or supplements thereto.with the
(vg) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and with counsel for the Placement Agents and their 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 the Placement Agents you may reasonably requestdesignate 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.
(xih) 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 date of the final Prospectus Supplement 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 holders of shares of
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision 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 Underwriters 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 sale of the Shares substantially in accordance with the description set forth in the Prospectus Supplement.
(l) The Company will timely file any document which it is required to file pursuant to the Exchange Act prior to the termination of the offering of the Shares.
(m) Except as provided in this Agreement, the Company will not, and has agreed to cause its affiliates not to, directly or indirectly, offer, sell, contract to sell or otherwise dispose of any Shares or any securities convertible into or exercisable or exchangeable for Shares, or grant any options or warrants to purchase common shares of beneficial interest, for a period of 90 days after the date of the final Prospectus Supplement, without the prior written consent of Smitx Xxxxxx Xxx.; provided, however, that the Company may issue Shares pursuant to the Company's 1992 Incentive Share Award Plan and upon the exercise of any outstanding options, and may issue and sell Shares pursuant to this Agreement; and provided, further, that Shares owned beneficially and of record by HRPT Advisors, Inc. subject to or which become subject to certain pledge agreements may be sold by the pledgees thereunder subject to the terms and conditions of such pledge agreements.
(n) The Company currently intends to continue to elect to qualify as a "real estate investment trust" under the Internal Revenue Code of 1986, as amended (the "Code"), and use its best efforts to continue to meet the requirement to qualify as a "real estate investment trust".
(o) Except as stated in this Agreement and in the Preliminary Prospectus Supplement and the Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be
(p) The Company will use its best efforts to cause have the Shares which it agrees to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered sell under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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”)listed, except with respect subject to (i) the issuance notice of shares of Common Stock upon the exercise of stock options outstanding as of the date hereofissuance, and (ii) the issuance of shares of 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 New York Stock Exchange on or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiverClosing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Health & Retirement Properties Trust)
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(ia) 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 under or a post-effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject use its reasonable efforts to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement or Statement, any amendment or supplements to the Final Preliminary Prospectus or any Issuer Free Writing the Prospectus or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4otherwise) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, the Company will make every use its reasonable effort efforts to obtain the withdrawal of any such order at the earliest possible momenttime. If 5
(c) The Company will furnish to you, without charge, one signed copy 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 and will also furnish to Rule 430A under you, without charge, such number of conformed copies of the ActRegistration Statement as originally filed and of each amendment thereto, 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 Placement Agents promptly of all such filingsbut without exhibits, as you may reasonably request.
(ivd) If, at The Company will not (i) file any time when the Final Prospectus relating amendment to the Shares 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 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 is required to be delivered under in connection with sales by any Underwriter or dealer, file any information, documents or reports pursuant to the Act 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.
(whether physically or through compliance with Rule 172 under e) Prior to the Act or any similar rule)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 the occurrence Preliminary 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 Preliminary 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 Underwriters a Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer, the Company will promptly deliver to each Underwriter and each dealer as many copies of the Prospectus (and of any event amendment or supplement thereto) as you may reasonably request and, if the delivery of a result prospectus is required at any time prior to the expiration of nine months after the date of the Prospectus such delivery shall be made by the Company free of charge; and at any time nine months or more after the date of the Prospectus such delivery shall be made at the expense of such Underwriter. 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 Final ProspectusShares 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 written 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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto and will promptly prepare and file with the Commission, at the Company’s expense, an amendment furnish to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance Underwriters and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof as the Placement Agents may reasonably requestthereof. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.6
(vg) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and with counsel for the Placement Agents and their 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 the Placement Agents you may reasonably requestdesignate 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.
(xih) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a 12-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) 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 Representatives for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(j) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth in the Prospectus under the caption "Use of Proceeds".
(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) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus, not to offer, sell, contract to sell or otherwise dispose of, without the prior written consent of Goldxxx, Xxchx & Xo. and Saloxxx Xxxxx Xxxnxx Xxx., any securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock (other than (i) the sale of shares of Class A Common Stock to the Underwriters pursuant to this Agreement and the DSP Side Letter, (ii) any offer and sale of shares of Class A Common Stock pursuant to director, officer and employee stock option plans of the Company existing and disclosed on the date of this Agreement, (iii) any offer and sale of shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock in connection with entering into and the performance of merger, amalgamation, acquisition agreements or agreements for similar transactions, and (iv) any offer 7 and sale of shares of Common Stock or securities convertible into or exchangeable for Common Stock to strategic partners of the Company; provided, that, in the case of clauses (iii) and (iv), any person or entity who acquires securities of the Company in this manner agrees not to offer, sell, contract to sell or otherwise dispose of such securities for the period of time beginning from the date of the acquisition of such securities and continuing to and including the date 180 days after the date of the Prospectus; provided, further, that in the case of clauses (iii) and (iv), the aggregate number of shares of Common Stock (including any shares of Common Stock issuable upon conversion or exchange of securities convertible into or exchangeable for Common Stock) issued shall not exceed 10% of the number of shares of Common Stock outstanding on the Firm Closing Date.
(m) The Company has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its current officers and directors and each of its shareholders designated by you.
(n) Except as stated in this Agreement and in the Preliminary Prospectus and 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.
(o) The Company will use its best efforts to cause have the Shares Class A Common Stock listed, subject to be listed for trading notice of issuance, on The the Nasdaq Capital National Market at concurrently with the time effectiveness of the ClosingRegistration Statement.
(xiip) The Company will does not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, believe that it is a Passive Foreign Investment Company ("PFIC") for U.S. Federal income tax purposes and does not expect 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein become one in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requestedfuture.
(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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(ia) 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 under or a post-effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject endeavor to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement or Statement, any amendment or supplements to the Final Prepricing Prospectus or any Issuer Free Writing the Prospectus or for additional information; (3ii) 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 purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or otherwise), business, prospects, properties, net worth or results of operations, or of the happening of any event, including the filing of any information, documents or reports pursuant to the Exchange Act, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or 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 therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or anl issue any stop order 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; (4) 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 (5) 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 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 time.
(c) The Company has omitted any information from will furnish to you, without charge (i) six signed copies of the Registration Statement, pursuant to Rule 430A under the Act, 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, (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 request, and (iv) six copies of the exhibits to said Rule 430A and to notify the Placement Agents promptly of all such filingsIncorporated Documents.
(ivd) IfSo long as, at any time when in the Final opinion of counsel for the Underwriters, a Prospectus relating to the Shares is required to be delivered under the Act (whether physically in connection with sales by any Underwriter or through compliance with Rule 172 under the Act or any similar rule)dealer, the Company will not (i) file any amendment to the Registration Statement, make any amendment or supplement to the Prospectus or file any document which, upon filing becomes aware an Incorporated Document, of which you shall not previously have been advised or to which you shall reasonably object after being so advised or (ii) file any information, documents or reports pursuant to the Exchange Act without delivering a copy of such information, documents or reports to you, as the several Underwriters, prior to such filing.
(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 occurrence 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 event amendment or supplement thereto) as a result 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 Final ProspectusShares 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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleadingProspectus (or to file under the Exchange Act any document which, or if for any other reason it is necessaryupon filing, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement becomes an Incorporated Document) to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents and will promptly prepare and provisions of paragraph (d) above, file with the CommissionCommission an appropriate supplement or amendment thereto or file an Incorporated Document, at the Company’s expense, an amendment and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance Underwriters and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as the Placement Agents may reasonably request. The Company consents several Underwriters, agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or discmatters to be covered by the use of the Final Prospectus or any proposed amendment or supplement thereto by the Placement 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 theretosupplement.
(vg) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and with counsel for the Placement Agents and their 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 the Placement Agents you may reasonably requestdesignate 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.
(xih) The Company will use make generally available to its best efforts to cause security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the Shares to be listed for trading on The Nasdaq Capital Market effective date of the Registration Statement and ending not later than fifteen 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 and the Rules and Regulations (including, at the time option of the ClosingCompany, Rule 158).
(xiii) During the period of five years after the date of this Agreement, 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 any stock exchange or regulatory body 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 1erwriters 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 out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(k) 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 apply the price net proceeds from the sale of the Shares to facilitate substantially in accordance with the sale or resale of any of description set forth in the SharesProspectus.
(xiiil) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion If Rule 430A of the period when a prospectus relating to the Shares Act is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingemployed, the Company will (itimely file the Prospectus in the proper manner pursuant to Rule 424(b) notify promptly under the Representative so that use Act and will advise you 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 correct time and manner of such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requestedfiling.
(xvm) The Except as provided in this Agreement, the Company will not, directly or indirectly, without the prior written consent of the Placement Agents, not offer to sell, sell, contract to sell, grant any option or warrant to purchase, make any short sale, sell or otherwise dispose of (any common stock or announce any offer, sale, grant of any option or warrant to purchase or other disposition), any shares of capital preferred stock of the Company ("Capital Stock") or any securities convertible intointo or exercisable or exchangeable for Capital Stock, or exchangeable grant any options or exercisable forwarrants to purchase Capital Stock or such securities, shares of capital stock of the Company, (the “Lock-Up Securities”) for a period of 180 90 days after the date of this Agreement the Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc.
(the “Lockn) The Company has furnished or will furnish to you "lock-Up Period”)up" letters, except with respect in form and substance satisfactory to (i) the issuance you, signed by each of shares its current officers and directors and each of Common Stock upon the exercise of stock options outstanding as of the date hereof, and (ii) the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectusits stockholders designated by you.
(xvio) Except as stated in this Agreement and in the Prepricing Prospectus and 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 any shares of its capital stock to facilitate the sale or resale of the Shares.
(p) The Company agrees that if will use its reasonable and diligent efforts to have the Representative agrees Shares listed, subject to waive or release any officer or director notice of issuance of Shares, on the Company from Nasdaq National Market as soon as practicable following the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company will announce the impending release or waiver by press release through a major news services at least two business days before the effective date execution of such release or waiverthis Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Sinclair Broadcast Group Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents you as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company shall use its best efforts to cause the Registration Statement and any amendments to become effective as promptly as practicable and will notnot at any time, during such period as whether before or after the Final Prospectus would be required by law to be delivered in connection with sales effective date of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Registration Statement, file any amendment or supplement to the Registration Statement or supplement to the Final 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 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 Placement Agents within a reasonable period of time prior to Company), or which is not in compliance with the filing thereof Act, the Exchange Act, or the Rules and Regulations. As soon as the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company is advised or obtains knowledge thereof, the Company will notify the Placement Agents promptlyadvise you, and will, if requestedas soon as practicable, confirm such notification in writing, (1i) 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; , (2) 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; (3ii) 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 Prospectusinitiation, or the initiation threatening, of any proceedings for that purpose or the threat thereof; (4) 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 (5) 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 hereby initiation, or in connection with sales the threatening, of Common Stock pursuant 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 market making activities by The Representativethe 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 any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A 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 Placement Agents promptly of all such filingsor suspension.
(ivb) IfThe Company will furnish to you, at without charge, three signed copies of the Registration Statement and any time when the Final Prospectus relating 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 amendment or supplement to which you shall reasonably object in writing or which is not in compliance with the Act.
(d) From the date hereof, and thereafter from time to time, the Company will deliver to you, without charge, as many copies of the Prospectus, or any 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 Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company becomes aware in connection therewith. If during such period of the occurrence of time any event as a result of shall occur which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or your counsel to should be set forth in the Placement Agents, 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 made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationslaw, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance thereto and will deliver to the Placement Agentsyou, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents you may reasonably request.
(vie) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make Prior to any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) The Company will apply the net proceeds from the public 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 Investorsby you, the Company will cooperate with the Placement Agents you and their 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 you request. The Company will pay all reasonable fees and expenses (including reasonable fees and expenses of counsel) relating to qualification of the Placement Agents 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 request; provideddesignate, 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.
(xif) The Company will pay all expenses in connection with (1) the 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 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 specified in the Prospectus under the caption "Use of Proceeds."
(h) The Company will appoint and retain, while any of the 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 necessary. As of the date of this Agreement, the transfer agent for the Shares of the Company is Oxford Transfer and Registrar, 000 X.X. Xxxxx, #1120, Portland, OR 97204.
(i) The Company shall utilize its best efforts to cause obtain the listing of the Shares to be listed for trading on The Nasdaq Capital the NASDAQ Small Cap Market at the time of the Closingsystem.
(xiij) The Neither the Company nor any of the Subsidiaries nor any of their respective executive officers, directors, principal stockholders or affiliates (within the meaning of the Rules and Regulations) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock in violation 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusExchange Act.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company understands, covenants ------------------------- and agrees with the Placement Agents Agent as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will shall not, either prior to the Effective Date or thereafter during such period as the Final 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)dealer, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Agent within a reasonable period of time prior to the filing thereof and the Placement Agents Agent shall not have reasonably objected thereto in good faith.
(iiib) The Company will shall use its best efforts to cause the Registration Statement to become effective, and shall notify the Placement Agents Agent promptly, and will, if requested, shall confirm such notification advice in writing, (1) when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement thereto becomes effective; , (2) 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 Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3) 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 Final Prospectus or any Issuer Free Writing Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (4) 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 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; misleading and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 under the Act430A, 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 Placement Agents Agent promptly of all such filings.
(ivc) If, at any time when the Final a Prospectus relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsAgent, 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 counsel to the Placement AgentsAgent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsAgent, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will shall promptly notify the Placement Agents and will Agent and, subject to Section 6(a) hereof, 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 Final Prospectus that corrects such statement or omission or effects such compliance and will shall deliver to the Placement AgentsAgent, without charge, such number of copies thereof as the Placement Agents Agent may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretoAgent.
(vd) The Company will shall furnish to the Placement Agents Agent and their its counsel, without charge charge, (ai) 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 (bii) so long as a prospectus relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Agent may reasonably request.
(vie) The Company will shall comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xf) Prior to the sale of the Shares Securities to the Investors, the Company will shall cooperate with the Placement Agents Agent and their 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 the Placement Agents Agent may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xig) The Company will use shall make generally available to holders of its best efforts to cause securities, as soon as may be practicable, but in no event later than the Shares to be listed for trading on The Nasdaq Capital Market at the time last day of the Closingfifteenth 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).
(xiih) The Company will shall 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.
(xiiii) The Company will notify promptly shall apply the Representative if net proceeds from the offering and sale of the Securities in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) The Placement Agent may not, 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, including any entity controlled by, or under common control with, the Company ceases to be an Emerging Growth Company at and any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Perioddirector, officer, employee or agent thereof.
(xivk) If at any time following Following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingClosing, the Company will (i) notify promptly Placement Agent shall have 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 right to correct such statement or omission; place usual and (iii) supply any amendment or supplement customary advertisements in financial and other newspapers and journals, at its own expense, describing its services to the Representative in such quantities as may be reasonably requestedCompany.
(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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Samples: Placement Agency Agreement (SFBC International Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsseveral Underwriters that:
(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) The when the Registration Statement has become effective, 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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, (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Preliminary Prospectus or for additional information; , (3iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, or the initiation or contemplation of any proceedings proceeding for that purpose or such purposes, and (iv) within the threat thereof; period of time referred to in paragraph (4f) of becoming aware 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 Final 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 Final 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 (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 the Registration Statement, pursuant to shall have been omitted therefrom in reliance upon Rule 430A under the Act, it then promptly following the execution of the Pricing Agreement, the Company will use prepare and file with the Commission, in accordance with Rule 430A and Rule 424(b) under the Act, 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) Neither the Company nor any of its best efforts subsidiaries will, prior to comply the earlier of the Option Closing Date or termination or expiration of the related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated in the Prospectus.
(d) The 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, 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 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 Placement Agents promptly effective date of all such filingsthe Registration Statement, of each Preliminary Prospectus so furnished by the Company.
(ivf) If, at any On the effective date of the Registration Statement and thereafter from time when to time during such period as in the Final Prospectus opinion of counsel for the Underwriters a prospectus relating to the Shares is required by law to be delivered under in connection with offers or sales of the Act (whether physically Shares by an Underwriter or through compliance with Rule 172 under the Act or any similar rule)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 Final 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 counsel to the Placement Agents, 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to will comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably requeststandards set forth in this sentence. The Company consents to the use of the Final such Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to in accordance with the Placement Agents and their counsel, without charge (a) one conformed copy provisions of the Registration Statement as originally filed Act and with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (b) so long as a prospectus relating to 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 is required by law to be delivered in connection therewith. In case any Underwriter is required to be delivered under the Act deliver a Prospectus (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 and any amendment or supplement thereto as thereto) more than nine months after the Placement Agents may reasonably first date upon which the Shares are offered to the public, the Company will, upon request, but at the expense of such Underwriter, promptly prepare and furnish such Underwriter with reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Act.
(vig) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents Representatives and their 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 the Placement Agents Representatives may designate, will continue such registrations or qualifications in effect so long as reasonably requestrequired 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.
(xih) 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; provided, however, this subsection shall not apply if at such time the Company has no shares of Common Stock registered under the Act; 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 use make generally available to its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time security holders an earnings statement of the ClosingCompany, 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).
(xiij) 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 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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, sell or otherwise dispose of (any Common Stock or announce any offer, sale, grant of any option or warrant rights to purchase or other disposition), any shares of capital stock of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company, (the “Lock-Up Securities”) Common Stock for a period of 180 days after the date of this the Pricing Agreement (without the “Lock-Up Period”), except with respect to (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding as prior written consent of the date hereof, Representatives. The Company will also obtain similar agreements from each of its officers and (ii) the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectusdirectors.
(xvil) The Company agrees that if will apply the Representative agrees to waive or release any officer or director net proceeds from the sale of the Company from shares to be sold by it under this Agreement and the lock-up restrictions Pricing Agreement in a manner consistent with the statements set forth in the letter agreements delivered pursuant to Section 7(xiii), Prospectus under the caption "Use of Proceeds."
(m) The Company will announce use its best efforts, subject to notice of issuance, to cause the impending release or waiver by press release through a major news services at least two business days before Shares to be approved for quotation on the effective date of such release or waiverNASDAQ Stock Market.
Appears in 1 contract
Samples: Underwriting Agreement (Comtech Telecommunications Corp /De/)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as follows:
(ia) 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 the Placement AgentsUnderwriters, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Underwriters promptly following such filing.
(iib) 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 Agreement (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 the Placement Agents Underwriters within a reasonable period of time prior to the filing thereof and the Placement Agents Underwriters shall not have reasonably objected thereto in good faith.
(iiic) The Company will notify the Placement Agents promptly, Underwriters promptly and will, if requested, confirm such notification in writing, : (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) of upon 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, Prospectus or the initiation of any proceedings for that purpose or the threat thereof; (4) 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 (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The Representativeany 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 under the Act430A, 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 Placement Agents Underwriters promptly of all such filings.
(ivd) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel to the Placement AgentsUnderwriters, 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 counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsUnderwriters, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents 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 Placement AgentsUnderwriters, without charge, such number of copies thereof as the Placement Agents Underwriters may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement AgentsUnderwriters, and the Placement Agents Underwriters agree to provide to each Investor, prior to the Closing, a copy of the Final Prospectus and any amendments or supplements thereto.
(ve) The Company will furnish to the Placement Agents Underwriters and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents Underwriters may reasonably request.
(vif) 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.
(viii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement AgentsRepresentative.
(viiij) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed, filed 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 under the Act to avoid a any requirement to file with the Commission any electronic road show.
(ix) 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.”
(xk) Prior to the sale of the Shares to the Investors, the Company will cooperate with the Placement Agents Underwriters and 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 the Placement Agents Underwriters may reasonably request; 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.
(xil) 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.”
(m) The Company will use its reasonable best efforts to cause ensure that the Shares to be are listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xiin) The Company and 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xvo) The Company will not, directly or indirectly, without the prior written consent of the Placement AgentsUnderwriters, 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 of the 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 Shares to be sold hereunder, (ii) the issuance of shares of Common Stock upon the exercise of stock options and warrants outstanding as of the date hereof, hereof and (ii) the issuance of shares 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.
, (xviiii) The the 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 agrees 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 if 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 officer or director of the Company Lock-Up Securities from the lockLock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii)Up Period, the Company will announce the impending release or waiver by press release through a major news services service at least two business days before the effective date of such release or waiver.
(p) Sxxxxx & Company, LLC will not sell any shares of Common Stock to an account holder with a discretionary account without specific approval of the transaction from the account holder and retaining documentation of the approval in its records.
(q) The Registration Statement, the Pricing Disclosure Materials and any Preliminary Prospectus comply, and any amendments or supplements thereto and the Final Prospectus and any amendments or supplements thereto will comply, with any applicable laws or regulations of jurisdictions in which the Registration Statement, the Pricing Disclosure Materials, the Final Prospectus or any Preliminary Prospectus, as amended or supplemented, if applicable, are distributed in connection with the Directed Share Program.
(r) The Company has not offered, or caused the Underwriters to offer, Shares to any person pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a customer or supplier of the Company to alter the customer’s or supplier’s level of business with the Company, or (ii) a trade journalist or publication to write or publish favorable information about the Company or its products.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsInitial Purchasers that:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any make no further amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of Offering Memorandum except as permitted herein; and if at any time prior to the filing thereof and earlier of (i) the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify completion of the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to distribution of the Registration Statement becomes effective; (2) of any request Notes by the Commission for any amendments to Initial Purchasers or (ii) 120 days after the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; (3) 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; (4) 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 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 (5) 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 have occurred as a result of which the Final ProspectusOffering Memorandum, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company Initial Purchasers or counsel to the Placement AgentsCompany, include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, each Initial Purchaser or the Registration StatementCompany, as then amended or supplementedthe case may be, would, in will promptly notify the reasonable judgment of counsel other and the Company will promptly prepare and deliver to the Company Initial Purchasers an amendment or counsel to the Placement Agents, include any supplement that will correct such untrue statement or omission.
(b) The Company shall advise the Initial Purchasers promptly and, if requested, will confirm such advice in writing, (i) of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time proposal to amend or supplement the Final Prospectus Offering Memorandum and will afford the Initial Purchasers a reasonable opportunity to comment on any such proposed amendment or the Registration Statement to comply with the Act or the Rules and Regulationssupplement, (ii) of receipt by the Company will promptly notify the Placement Agents and will promptly prepare and file of any notification with the Commission, at the Company’s expense, an amendment respect 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use suspension of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and their counsel in connection with the registration or qualification of the Shares Notes for offer and sale under the state securities or Blue Sky laws of such jurisdictions as the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) The Company will not at any time, directly initiation 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 threat of any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so proceeding for 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 correct such statement or omission; purpose and (iii) supply of any amendment or supplement to downgrading in the Representative in such quantities rating accorded the Notes by any "nationally recognized statistical rating organization" (as may be reasonably requested.
(xvdefined for purposes of Rule 436(g) The Company will notunder the Securities Act, 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 salean "NRSRO"), or otherwise dispose of (or announce any offer, sale, grant of public announcement that any option or warrant to purchase or other disposition), any shares of capital stock of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.organization
Appears in 1 contract
Samples: Purchase Agreement (Plainwell Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou that:
(a) 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) The 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 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to the 462 Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof is filed and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptlybecomes effective, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to it becomes effective, (ii) of the receipt of any comment that relates to the Registration Statement becomes effective; (2) of 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 Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, or the initiation of any proceedings proceeding for that purpose such purposes by the Commission or any state securities commission or regulatory authority, (iv) when any amendment to the threat thereof; Registration Statement becomes effective, (4v) 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 (vi) of becoming aware 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 Final 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 Final 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 (5) 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), state securities commission or other regulatory authority shall issue an order suspending the Company becomes aware of the occurrence of any event as a result of which the Final Prospectus, as then amended qualification or supplemented, would, in the reasonable judgment of counsel to the Company or counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) The Company will apply the net proceeds from the offering and sale exemption 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 the Placement Agents and their 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadinglaws, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The (a) Prior to and during the Plan Support Period, subject to the terms and conditions hereof, the Company covenants and agrees with the Placement Agents as followsthat it shall, without limitation:
(i) 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 under the Act is used or other Definitive Documents and (2) use commercially reasonable efforts to obtain entry by the filing Bankruptcy Court of the Final Prospectus is otherwise required under Rule 424(b) under the ActCash Collateral Orders, the Company will file Disclosure Statement Order and the Final Prospectus Confirmation Order within the timeframes contemplated by this Agreement; and (properly completed B) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring embodied in the Plan, if Rule 430A under the Act has been used)any, subject and solely to the prior approval of extent necessary to effectuate the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.Restructuring;
(ii) The Company will notcontinue to operate its businesses without material change in such operations or disposition of material assets (unless in such instance, during such period as the Final Prospectus would be required by law to be delivered Required Creditors have consented thereto in connection writing) in accordance with sales of the Shares by an underwriter or dealer in connection its business judgment, and confer with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Consenting Parties and their respective representatives, file any amendment or supplement as reasonably requested, to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof report on operational matters and the Placement Agents shall not have reasonably objected thereto in good faith.general status of ongoing operations;
(iii) The Company will notify (A) support and take all reasonable actions necessary or reasonably requested by the Placement Agents promptlyRequisite Creditors to facilitate the solicitation, confirmation, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) consummation of the issuance by Restructuring, the Commission of Plan and the transactions contemplated thereby, and (B) not take any stop order preventing action directly or suspending indirectly that is inconsistent with, or that would reasonably be expected to prevent, interfere with, delay or impede the effectiveness approval of the Registration Disclosure Statement, the Final Prospectus or any Issuer Free Writing Prospectussolicitation of votes on the Plan, or and the initiation of any proceedings for that purpose or the threat thereof; (4) of becoming aware confirmation and consummation of the occurrence Plan and the Restructuring, including soliciting or causing or allowing any of its agents or representatives to solicit 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 (5) of receipt by the Company of any notification with respect agreements relating to any suspension chapter 11 plan or restructuring transaction (including, for the avoidance of the qualification doubt, a transaction premised on an asset sale of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any order suspending the effectiveness substantially all of the Registration Statement in connection with the offering contemplated hereby 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use assets under section 363 of the Final Prospectus or any amendment or supplement thereto by Bankruptcy Code) other than the Placement 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.
Restructuring (v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 theretoan “Alternative Transaction”), and (bC) so long as a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or not, nor encourage any similar rule)other person to, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would, or would subject it to general service of process in reasonably be expected to, breach or be inconsistent with this Agreement or delay, impede, appeal, or take any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) The Company will not at any timeother negative action, directly or indirectly, take or encourage any action intendedother entity to interfere with the acceptance or implementation of the Restructuring;
(iv) (A) file on the Petition Date such first day motions and pleadings that are reasonably acceptable, or which might reasonably be expectedin form and substance, 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.Requisite Creditors;
Appears in 1 contract
Samples: Plan Support Agreement (Midstates Petroleum Company, Inc.)
Agreements of the Company. The Company covenants and agrees with the Placement Agents you as follows:: -------------------------
(ia) The Registration Statement has become effective, and if Rule 430A under the Act is used or the filing In respect of the Final Prospectus is otherwise required under Rule 424(b) under the Actoffering of Shares, the Company will file prepare a Prospectus Supplement setting forth the Final number of Shares covered thereby and their terms not otherwise specified in the Prospectus 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 any, 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 Underwriter and to such dealers as you shall specify as many copies of the Prospectus as the Underwriter shall reasonably request for the purposes contemplated by the Act or the Exchange Act.
(properly completed if Rule 430A b) At any time when the Prospectus is required to be delivered under the Act has been used), subject to or the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Exchange Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) The Company will not, during such period as the Final Prospectus would be required by law to be delivered in connection with sales of Shares, the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willadvise you promptly and, if requestedrequested by you, confirm such notification advice in writing, of (1i) when the effectiveness of any post-effective amendment to the Registration Statement becomes effective; Statement, (2ii) the transmittal to the Commission for filing of any Prospectus or other supplement or amendment to the 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, (iv) any request by the Commission for any post-effective amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3v) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, and (vi) the threat thereof; (4) of becoming aware of the occurrence happening of any event that in as a result of which the judgment Prospectus as then amended or supplemented would include an untrue statement of the Company makes any statement made in the Registration Statement a material fact or the Final Prospectus untrue in omit to state any material respect or that requires the making of any changes in the Registration Statement or the Final 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 (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A under the ActProspectus 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 Placement Agents promptly of all such filings.extent permitted by Regulation S-T.
(ive) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance the Exchange Act in connection with Rule 172 under the Act or any similar rule)sales of Shares, the Company becomes aware of the occurrence of any event shall occur as a result of which which, in the Final 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 counsel to the Placement Agents, 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 counsel Underwriter and 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without chargedealers as you shall specify, such number of copies thereof as the Placement Agents Underwriter or dealers may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(vf) The Company will furnish use its best efforts, in cooperation with the Underwriter, to qualify or 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 you may reasonably request; 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 Placement Agents best interests of the Company and their counselits stockholders. In each jurisdiction in which the Shares have been so qualified or registered, without charge 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.
(ag) one conformed copy 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 originally 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 and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and or any securities exchange.
(bi) so long as a prospectus relating to During the Shares period when the Prospectus is required to be delivered under the Act (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 Exchange Act in connection with sales of the Shares, to file all documents required to be filed by it with the Commission pursuant to Section 13, 14 or any amendment or supplement thereto as 15 of the Placement Agents may reasonably requestExchange Act within the time periods required by the Exchange Act.
(vij) The Company will comply 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 all the undertakings contained 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.
(vii) The Company will not make any offer relating to , the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain and all amendments and supplements thereto as may be requested for use in accordance connection with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) The Company will apply the net proceeds from the offering and or sale of the Shares in by the manner set forth in Underwriter or by dealers to whom Shares may be sold, (vi) the Final Prospectus under preparation, issuance and delivery of certificates for the caption “Use of Proceeds.”
(x) Prior 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 Investors, Underwriter and (ix) the Company will cooperate with the Placement Agents fees and their counsel in connection with the registration or qualification disbursements of the Shares for offer Company's counsel and sale under the state securities or Blue Sky laws of such jurisdictions as the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subjectaccountants.
(xik) The Company will use its best efforts to cause maintain the listing of the Shares on the NYSE for a period of three years after 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 for the Shares to continue to be listed for trading on The Nasdaq Capital Market at the time of the Closingso listed.
(xiil) The Company will not at use its best efforts to do and perform all things required to be done and performed under this Agreement by the Company prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiim) The Company will notify promptly use the Representative if net proceeds received by it from the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion sale of the period when a prospectus relating to Shares in the Shares is required to be delivered manner specified in the Prospectus Supplement under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion "Use of the Lock-Up PeriodProceeds."
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xvn) The Company will notprepare and file or transmit for filing with the Commission in accordance with Rule 424(b) of the Act copies of the Prospectus.
(o) The Company will use its best efforts to continue to qualify as a "real estate investment trust" ("REIT") under Sections 856 through 860 of the 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 Company to be so qualified.
(p) The Company hereby agrees not to, directly or indirectly, without register the prior written consent of the Placement Agentssale of, offer to sell, sell, contract to sell, grant any option or warrant to purchase, make any short sale, purchase or otherwise dispose of (or announce any offerShares of common stock, salepar value $.01 per share, grant of any option or warrant to purchase or other disposition), any shares of capital stock of the Company ("Common Shares") or any securities convertible into, into or exercisable or exchangeable for such Common Shares or exercisable forin any other manner transfer all or a portion of the economic consequences associated with the ownership of any such Common Shares, except to the Underwriter pursuant to this Agreement, for a period of 45 days after the date of the Prospectus Supplement without the prior written consent of the Underwriter. Notwithstanding the foregoing, during such period the Company may (i) grant shares of capital common stock and stock options pursuant to any employee benefit or incentive plan or management or director stock purchase plan of the Company, (the “Lock-Up Securities”ii) 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 issue Common Stock Shares upon the exercise of stock options outstanding as such options, (iii) issue Common Shares in consideration of real property and/or other assets acquired by the date hereofCompany or a subsidiary thereof, (iv) issue Common Shares in a merger or consolidation transaction in which the Company or a subsidiary thereof is the surviving entity and (iiv) the issuance of shares of issue Common Stock or stock options under any benefit plan of the Company existing on the date hereofShares in exchange for partnership units in TriNet Sunnyvale Partners, L.P. and described in the Final ProspectusTriNet Property Partners, L.P., d/b/a TriNet Property Partners Limited Partnership.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Samples: Underwriting Agreement (Trinet Corporate Realty Trust Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents you as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company shall use its best efforts to cause the Registration Statement and any amendments to become effective as promptly as practicable and will notnot at any time, during such period as whether before or after the Final Prospectus would be required by law to be delivered in connection with sales effective date of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Registration Statement, file any amendment or supplement to the Registration Statement or supplement to the Final 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 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 Placement Agents within a reasonable period of time prior to Company), or which is not in compliance with the filing thereof Act, the Exchange Act, or the Rules and Regulations. As soon as the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company is advised or obtains knowledge thereof, the Company will notify the Placement Agents promptlyadvise you, and will, if requestedas soon as practicable, confirm such notification in writing, (1i) 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; , (2) 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; (3ii) 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 Prospectusinitiation, or the initiation threatening, of any proceedings for that purpose or the threat thereof; (4) 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 (5) 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 hereby initiation, or in connection with sales the threatening, of Common Stock pursuant 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 market making activities by The Representativethe 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 any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A 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 Placement Agents promptly of all such filingsor suspension.
(ivb) IfThe Company will furnish to you, at without charge, three signed copies of the Registration Statement and any time when the Final Prospectus relating 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 amendment or supplement to which you shall reasonably object in writing or which is not in compliance with the Act.
(d) From the date hereof, and thereafter from time to time, the Company will deliver to you, without charge, as many copies of the Prospectus, or any 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 Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company becomes aware in connection therewith. If during such period of the occurrence of time any event as a result of shall occur which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or your counsel to should be set forth in the Placement Agents, 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 made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationslaw, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance thereto and will deliver to the Placement Agentsyou, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents you may reasonably request.
(vie) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make Prior to any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) The Company will apply the net proceeds from the public 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 Investorsby you, the Company will cooperate with the Placement Agents you and their 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 you request. The Company will pay all reasonable fees and expenses (including reasonable fees and expenses of counsel) relating to qualification of the Placement Agents 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 request; provideddesignate, 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.
(xif) The Company will pay all expenses in connection with (1) the 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 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 specified in the Prospectus under the caption "Use of Proceeds."
(h) The Company will appoint and retain, while any of the 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 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 cause obtain the listing of the Shares to be listed for trading on The Nasdaq Capital the NASDAQ Small Cap Market at the time of the Closingsystem.
(xiij) The Neither the Company nor any of the Subsidiaries nor any of their respective executive officers, directors, principal stockholders or affiliates (within the meaning of the Rules and Regulations) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock in violation 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusExchange Act.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(a) In respect of the offering of Shares, to (i) The Registration Statement prepare a prospectus supplement setting forth the number of Shares covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Shares are being issued, the names of the Underwriters participating in the offering and the number of Shares which each severally has become effectiveagreed to purchase, the names of the Underwriters acting as co-managers, if any, in connection with the offering, the price at which the Shares are to be purchased by the Underwriters from the Company, the public offering price, the selling concession and reallowance if any, and if such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Shares and (ii) file the Prospectus in a form approved by you pursuant to Rule 430A 424 under the Act no later than the Commission's close of business on the second business day following the date of determination of the offering price of the Shares.
(b) At any time when the Prospectus is used required to be delivered under the Act in connection with sales of Shares, to advise you promptly and, if requested by you, to 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 other supplement or amendment to the 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 relating to the Shares, the Prospectus or any of the transactions contemplated by this Agreement, (iv) any request by the Commission for post-effective amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (v) the issuance by the Commission of any stop order 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 filing initiation of any proceeding for such purposes, and (vi) the happening of any event which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. The Company will make every reasonable effort to prevent the issuance of any stop order and if at any time the Commission shall issue any stop order suspending the effectiveness of the Final Prospectus is otherwise required under Rule 424(b) under the ActRegistration Statement, the Company will file use its best efforts to obtain the Final withdrawal or lifting of such order at the earliest possible time.
(c) To furnish to you one signed copy, without charge, of the Registration Statement as first filed with the Commission and of each amendment thereto, 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 and without documents incorporated therein by reference, as you may reasonably request. If applicable, the copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) At any time when the Prospectus (properly completed if Rule 430A is required to be delivered under the Act has been used)in connection with sales of Shares, subject not to file any amendment to the prior approval 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 Underwriters shall reasonably object; and to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement, Rule 462(b) Registration Statement, Term Sheet, or amendment or supplement to the Prospectus which, in the opinion of counsel for the Underwriters, may be necessary in connection with the distribution of the Placement AgentsShares by you, and to use its best efforts to cause the same to become promptly effective. If applicable, the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing XXXXX, except to the Placement Agents promptly following such filing.extent permitted by Regulation S-T.
(iie) The Company will notPrior to 10:00 A.M., during 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 Final Prospectus would be 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 Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement Prospectus (whether physically or through compliance with Rule 172 under the Act or any similar rule), file and of any amendment or supplement to the Registration Statement Prospectus) as such Underwriter or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have dealer may reasonably objected thereto in good faithrequest.
(iiif) The Company will notify If during the Placement Agents promptlyperiod specified in Section 5(e), and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) 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; (4) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Registration Statement shall occur 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 (5) 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 condition shall issue any order suspending the effectiveness of the Registration Statement in connection with the offering contemplated hereby 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 exist as a result of which the Final 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 counsel to the Placement Agents, 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 when the Prospectus is delivered to a purchaser, not misleading, or the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents such Underwriter or dealer may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(vg) 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 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 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.
(h) To make generally available to its stockholders pursuant to Rule 158 of the Act as soon as practicable an earnings statement which need not be audited covering the twelve-month period ending March 31, 1999, and to advise you in writing, if requested by you, when such statement has been so made available.
(i) 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 Placement Agents and their counsel, without charge (a) one conformed copy record holders of the Registration Statement as originally 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 each amendment thereto, including financial statements such other publicly available information concerning the Company and schedules, and all exhibits thereto, and its subsidiaries as you may reasonably request.
(bj) so long as a prospectus relating to During the Shares period when the Prospectus is required to be delivered under the Act in connection with sales of the Shares, to file all documents required to be filed by it with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act.
(whether physically k) Whether or through compliance 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 Rule 172 the registration and delivery of the Shares under the Act or any similar ruleand all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), as many any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or thereof to the Final Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained Underwriters and dealers in the Registration Statement.
quantities specified herein, (viiii) The Company will not make any offer relating all costs and expenses related to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules transfer and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate including any transfer or other taxes payable thereon, (iii) all costs, if any, of printing, producing or delivering this Agreement and any other agreements or documents in connection with the Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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., if applicable, (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 the preparation, issuance and delivery of certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, (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 otherwise made in this Section, and (x) any travel expenses incurred by the Company in connection with a "road show" presentation to take any action which would subject it to general service of process in any jurisdiction where it is not now so subjectpotential investors.
(xil) The Company will To use its best efforts to cause list for quotation the Shares on the Nasdaq National Market and to be listed for trading on The Nasdaq Capital Market at maintain the time of the Closing.
(xii) 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 listing of the Shares to facilitate on the sale Nasdaq National Market or resale of any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the Company or national securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company, (the “Lock-Up Securities”) exchange for a period of 180 days three years 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusAgreement.
(xvim) The Company agrees that if To use the Representative agrees to waive or release any officer or director net proceeds received by it from the sale of the Company from the lock-up restrictions Shares in the letter agreements delivered pursuant manner specified in the Prospectus Supplement under "Use of Proceeds".
(n) To use its best efforts to Section 7(xiii), do and perform all things required or necessary to be done and performed under this Agreement by the Company will announce prior to the impending release Closing Date or waiver by press release through a major news services at least two business days before any Additional Shares Closing Date, as the effective date case may be, and to satisfy all conditions precedent to the delivery of such release or waiverthe Shares.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) and any documents incorporated therein by reference as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xf) Prior to the sale any public offering of the Shares Shares, to the Investors, the Company will cooperate with you and counsel for the Placement Agents and their counsel 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 Placement Agents Shares and to file such consents to service of process or other documents as may reasonably requestbe necessary in order to effect such registration or qualification; providedPROVIDED, 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.
(xig) The Company will use To make generally available to its best efforts to cause stockholders as soon as practicable an earnings statement covering the Shares to be listed for trading on The Nasdaq Capital Market at twelve-month period ending June 30, 1999 that shall satisfy the time provisions of Section 11(a) of the ClosingAct, and to advise you in writing when such statement has been so made available.
(xiih) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of During the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 three years after the date of this Agreement, to furnish to you upon your request 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.
(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 “Lock-Up Period”)performance of the Sellers' obligations under this Agreement, except with respect to including: (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding as fees, disbursements and expenses of the date hereof, and (ii) the issuance of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii)Company's counsel, the Company 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 release or waiver.Company's accountants and any
Appears in 1 contract
Samples: Underwriting Agreement (Dura Automotive Systems Inc)
Agreements of the Company. The (a) During the Support Period, the Company covenants and agrees with the Placement Agents as followsto:
(i) 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 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 Act Laws of the state in which each Company is used 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 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.Chapter 11 Cases;
(iivi) The Company will not, during such period respond to commercially reasonable diligence requests requested by the Ad Hoc Group Advisors 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have soon as reasonably objected thereto in good faith.practicable after receipt thereof;
(iiivii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, except (1) when any post-effective amendment to with the Registration Statement becomes effective; consent of the Requisite Consenting Creditors or (2) of any request as required by Law, (v) use commercially reasonable efforts to conduct its business and operations only in the Commission ordinary course in a manner that is consistent with past practices and in compliance with Law, except for any amendments failure to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; (3) 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; (4) of becoming aware of the occurrence of any event that operate its business and operations in the judgment of the Company makes any statement made ordinary course in the Registration Statement or the Final Prospectus untrue in any material respect or a manner 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 (5) of receipt by the Company of any notification is consistent 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 past practice as a result of which the Final 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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules full force and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 theretoeffect, and (bz) so long comply in all material; respects with, perform all of their respective obligations under, and maintain in full force and effect, each Material Contract (other than any Material Contract that has expired after the Effective Date in accordance with its terms and except as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained expressly contemplated in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.Restructuring Term Sheet); and
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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 if any electronic road show.
(ix) The Company will apply the net proceeds from the offering and sale Debtor receives an unsolicited proposal or expression 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 interest with respect to an Alternative Restructuring, within two (i2) Business Days after the issuance receipt of shares such proposal or expression of Common Stock upon interest, notify the exercise of stock options outstanding as Ad Hoc Group Advisors of the date hereofreceipt thereof, and (ii) with such notice to include the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectusmaterial terms thereof.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Samples: Restructuring Support Agreement (Core Scientific, Inc./Tx)
Agreements of the Company. The Company covenants and agrees with the Placement Agents several U.S. ------------------------- Underwriters as follows:
(ia) 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 under or a post-effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject endeavor to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) 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 Final Prospectus or any Issuer Free Writing Prospectus Prospectuses or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 under the ActIncorporated Documents.
(d) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectuses or, it 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 use its best efforts deliver to comply 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 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 U.S. Underwriters and by dealers, prior to said Rule 430A and to notify the Placement Agents promptly date of all such filingsthe U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company.
(ivf) 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 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, at 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 time when the Final Prospectus relating 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 Act U.S. Prospectus (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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleadingU.S. Prospectus (or to file under the Exchange Act any document which, or if for any other reason it is necessaryupon filing, becomes an Incorporated Document) in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement order to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents and will promptly prepare and provisions of paragraph (d) above, file with the CommissionCommission an appropriate supplement or amendment thereto (or to such document), at the Company’s expense, an amendment and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance U.S. Underwriters and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as the Placement Agents may reasonably request. The Company consents to the use Representatives of the Final several U.S. Underwriters, agree that the U.S. Prospectus should be amended or any supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement thereto by the Placement 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 theretosupplement.
(vg) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and with counsel for the Placement Agents and their 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 the Placement Agents you may reasonably requestdesignate 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.
(xih) 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 sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth in the Prospectuses.
(l) 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.
(m) Except as provided in this Agreement and the International Underwriting Agreement, the Company will not 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 to the Managers pursuant to the International Underwriting Agreement, for a period of 60 days after the date of the Prospectuses, without the prior written consent of Xxxxx Xxxxxx Inc.
(n) The Company has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its current officers and directors and each of its stockholders listed in Schedule III.
(o) 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 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.
(p) The Company will use its best efforts to cause have the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 which it agrees to sell under this Agreement listed, subject to notice of stock options outstanding as of the date hereofissuance, and (ii) the issuance of shares of 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 New York Stock Exchange on or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiverClosing Date.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several U.S. Underwriters as follows:
(ia) 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 under or a post-effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject endeavor to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) 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 Final Prospectus or any Issuer Free Writing Prospectus Prospectuses or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4otherwise) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 under the Act, 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 Placement Agents promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request.
(ivd) If, at The Company will not (i) file any time when the Final 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 Act 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.
(whether physically or through compliance with Rule 172 under e) Prior to the Act or any similar rule)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 Final 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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final U.S. Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents and will promptly prepare and provisions of paragraph (d) above, 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 Final Prospectus that corrects such statement or omission or effects such compliance U.S. Underwriters and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretothereof.
(vg) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and with counsel for the Placement Agents and their 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 the Placement Agents you may reasonably requestdesignate 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.
(xih) 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 sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth in the Prospectuses.
(l) 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.
(m) For a period of 180 days after the date 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 has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its current officers and directors and each of its stockholders designated by you.
(o) 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 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.
(p) The Company will use its best efforts to cause have the Shares Common Stock listed, subject to be listed for trading notice of issuance, on The Nasdaq Capital the NASDAQ National Market at concurrently with the time effectiveness of the ClosingRegistration Statement.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with each of the Placement Agents several Underwriters as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, cause the Prospectus 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 after having been furnished a copy within a reasonable time prior to filing) and will notify the Representatives promptly of such filing. The Company will not during such period as the Final 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 (whether physically or through compliance with Rule 172 under the Act or any similar rule"Prospectus Delivery Period"), file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Representatives within a reasonable period of time prior to the filing thereof and the Placement Agents Representatives shall not have reasonably objected thereto in good faith.
(iiib) 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 Placement Agents Representatives promptly, and will, if requested, will confirm such notification advice in writing, (1i) 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; , (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3iii) 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, Statement or the initiation of any proceedings for that purpose or the threat thereof, (iv) of the suspension of the 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; (4v) of becoming aware of the occurrence 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 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; misleading and (5vi) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The Representativeany 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 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 Placement Agents Representatives promptly of all such filings.
(ivc) If, at any time when the Final a Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, the Company becomes aware of the occurrence of any event occurs as a result of which which, in the Final 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 counsel to the Placement Agents, 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 counsel to the Placement Agents, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, necessary at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretocompliance.
(vd) The Company will furnish to the Placement Agents and their counselRepresentatives, without charge (a) one conformed copy charge, 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably requestschedules but without exhibits.
(vie) The Company will comply with all the provisions of all undertakings contained in the Registration Statement.
(viif) During the Prospectus Delivery Period, the Company will promptly furnish to the Underwriters, without charge, as many copies of each preliminary prospectus, the Prospectus (containing the Prospectus Supplement) and any amendment or supplement thereto as the Underwriters may from time to time reasonably request. The Company will not 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 offer relating 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 Shares that would constitute an Issuer Free Writing Underwriters, it is necessary to supplement or amend the Prospectus without to comply with law, the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance forthwith prepare and duly file with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed, and timely file and include the Commission an appropriate legends supplement or amendment thereto. Except as required by the Exchange Act or the Exchange Act Rules and Regulations. The , the Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 shall not file any document under the Exchange Act before the termination of the Prospectus Delivery Period if such document would be deemed to avoid a requirement be incorporated by reference into the Prospectus to file with which the Commission any electronic road showRepresentatives reasonably object.
(ixg) The Company will apply the net proceeds from the Prior to any public offering and sale of the Shares in by the manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
(x) Prior to the sale of the Shares to the InvestorsUnderwriters, the Company will cooperate with the Placement Agents Representatives and their 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 the Placement Agents Representatives may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xih) 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 use make generally available to its best efforts to cause security holders as soon as practicable, but not later than ninety (90) days after the Shares to be listed for trading on The Nasdaq Capital Market at the time close of the Closingperiod 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.
(xiij) The Company will apply the net proceeds from the offering and sale of the Shares in the manner set forth in the Prospectus under "Use of Proceeds."
(k) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsTHE COMPANY AGREES WITH YOU:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To mail and make any offer relating generally available to its stockholders as soon as practicable an earnings statement covering the Shares that would constitute an Issuer Free Writing Prospectus without twelve-month period ending [date one year after the prior written consent end of the Placement AgentsCompany's fiscal quarter in which the Closing will occur], 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.
(viiih) The Company will retain in accordance 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 record holders of Common Stock or furnished to or filed with the Rules Commission or any national securities exchange on which any class of securities of the Company is listed and Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel and include the appropriate legends as required by Company's accountants in connection with the Rules registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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 subjectthis Section.
(xij) The Company will To use its best efforts to cause list for quotation the Shares on the Nasdaq National Market and to be listed for trading on The Nasdaq Capital Market at maintain the time listing of the ClosingShares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(xiik) 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 will not at prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several U.S. Underwriters as follows:
(ia) 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 under or a post-effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject endeavor to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) 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 Final Prospectus or any Issuer Free Writing Prospectus Prospectuses or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 under the Act, 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 Placement Agents promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request.
(ivd) If, at The Company will not (i) file any time when the Final 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 Act 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.
(whether physically or through compliance with Rule 172 under e) Prior to the Act or any similar rule)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 Final 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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final U.S. Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents and will promptly prepare and provisions of paragraph (d) above, 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 Final Prospectus that corrects such statement or omission or effects such compliance U.S. Underwriters and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretothereof.
(vg) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and with counsel for the Placement Agents and their 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 the Placement Agents you may reasonably requestdesignate 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.
(xih) The Company will use make generally available to its best efforts 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 cause 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 sale of the Shares to be listed for trading on The Nasdaq Capital Market at sold by it hereunder substantially in accordance with the time of description set forth in the ClosingProspectuses.
(xiil) 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 If Rule 430A of the price of the Shares to facilitate the sale or resale of any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares Act is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingemployed, the Company will (itimely file the Prospectuses pursuant to Rule 424(b) notify promptly under the Representative so that use Act and will advise you 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 correct time and manner of such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requestedfiling.
(xvm) 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 of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company, (the “Lock-Up Securities”) for For a period of 180 days after the date of this Agreement hereof (the “"Lock-Up 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 with respect to 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 outstanding as granted, or the grant of stock options under the date hereof, Company's Stock Option Plan (and (ii) the issuance filing of a Form S-8 Registration Statement with respect to such shares of Common Stock or stock options under any benefit plan of Stock) and (v) sales to the Company existing on U.S. Underwriters pursuant to this Agreement and the date hereof, and described in Managers pursuant to the Final ProspectusInternational Underwriting Agreement.
(xvin) The Company agrees that if the Representative agrees has furnished or will furnish to waive or release any officer or director of the Company from the you "lock-up restrictions up" letters, in form and substance reasonably satisfactory to you, signed by each of its current officers and directors and each of ___________.
(o) Except as stated in this Agreement and in the letter agreements delivered pursuant to Section 7(xiii)International Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will announce 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 impending release price of the Common Stock to facilitate the sale or waiver by press release through a major news services at least two business days before resale of the effective date Shares.
(p) The Company will use its reasonable best efforts to have the Common Stock listed, subject to notice of such release or waiverissuance, on the Nasdaq National Market concurrently with the effectiveness of the registration statement.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several ------------------------- Underwriters as follows:
(ia) 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 under or a post-effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject endeavor to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for any amendments an amendment of or a supplement to the Registration Statement or any amendment or supplements to Statement, the Final Prepricing Prospectus or any Issuer Free Writing the Prospectus or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A under the Securities Exchange Act of 1934, as amended (the "Exchange Act") without delivering a copy of such information, it 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 to said Rule 430A and to notify securities or Blue Sky laws of the Placement Agents promptly of all such filings.
(iv) If, at any time when jurisdictions in the Final Prospectus relating to 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 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 is required to be delivered under set forth in the Act Prospectus (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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleadingProspectus (or to file under the Exchange Act any document which, or if for any other reason it is necessaryupon filing, becomes an Incorporated Document) in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement order to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify prepare and, subject to the Placement Agents provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will promptly prepare and file with the Commission, at the Company’s expense, an amendment furnish 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 Placement Agents, without charge, such each Underwriter a reasonable number of copies thereof as thereof. In the Placement Agents may reasonably request. The event that the Company consents and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the use of the Final Prospectus or any proposed amendment or supplement thereto by the Placement 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 theretosupplement.
(vg) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents you and their 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 the Placement Agents you may reasonably requestdesignate 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.
(xih) The Company will use make generally available to its best efforts 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 cause 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 sale of the Shares to be listed for trading on The Nasdaq Capital Market and the Concurrent Shares substantially in accordance with the description set forth in the Prospectus.
(l) If Rule 430A of the Act is utilized, the Company will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the ClosingRegistration Statement.
(xiim) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including Except as provided in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingthis Agreement, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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, not sell, contract to sell, grant any option or warrant to purchase, make any short sale, sell or otherwise dispose of (any Common Shares or announce any offersecurities convertible into or exercisable or exchangeable for Common Shares, sale, or grant of any option options or warrant warrants to purchase or other disposition)Common Shares, any shares of capital stock of the 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”)Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc., except with respect to for (i) options or Common Shares issued pursuant to stock option or stock purchase plans as described in the issuance of shares of Registration Statement, the Prospectus or the Incorporated Documents, (ii) Common Stock Shares issuable upon the exercise of stock options the option for 50,000 Common Shares held by a consultant to the Company 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 hereofhereof in Grove Operating, L.P., a Delaware limited partnership (the "Operating Partnership") and the entity through which the Company owns and operates the Properties and (iiiv) Common Units issued in connection with the issuance acquisition of shares of Common Stock or stock options under any benefit plan of additional properties by the Company existing on the date hereof, and described in the Final ProspectusOperating Partnership.
(xvin) The Company agrees that if the Representative agrees has furnished to waive or release any officer or director of the Company from the you "lock-up restrictions up" letters in the letter agreements delivered pursuant to Section 7(xiii)form attached hereto as Annex B, signed by each of its current executive officers and Trust Managers and each purchaser of Common Shares (assignee thereof) in the Concurrent Offering.
(o) Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will announce 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 impending release price of the Common Shares to facilitate the sale or waiver by press release through a major news services at least two business days before resale of the effective date of Shares.
(p) The Company has made and will make such release filings with, and has provided and will provide such notices to, the American Stock Exchange ("AMEX") so that the Shares will be listed on AMEX on or waiverprior to the Closing Date.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to reasonable opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To mail and make any offer relating generally available to its shareholders as soon as practicable an earnings statement covering a period of at least twelve months beginning after the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent effective date of the Placement AgentsRegistration Statement that shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations thereunder (including Rule 158), which need not be audited, and to advise you in writing when such statement has been so made available.
(viiih) The Company will retain in accordance 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 record holders of Common Shares or furnished to or filed with the Rules Commission or any national securities exchange on which any class of securities of the Company is listed and Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel and include the appropriate legends as required by Company's accountants in connection with the Rules registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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 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 Underwriters or by the Company be obligated pursuant to qualify the Directed Share Program, (vii) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to do business in 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 jurisdiction where it 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 now so qualified or to take otherwise made in this Section. It is understood that except as provided in this Section, the Underwriters will pay all of their own costs and expenses, including fees and disbursements of their counsel and any action which would subject it to general service stock transfer taxes on resale of process in any jurisdiction where it is not now so subjectof the Shares held by them.
(xij) The Company will To use its best efforts to cause list for quotation the Shares on the Nasdaq National Market and to be listed for trading on The Nasdaq Capital Market at maintain the time listing of the ClosingShares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(xiik) 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 will not at prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) 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 Final 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)dealer, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Representative within a reasonable period of time prior to the filing thereof and the Placement Agents Representative shall not have reasonably objected thereto in good faith.
(iiib) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Placement Agents Representative and its counsel promptly, and will, if requested, will confirm such notification advice in writing, (1i) when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement thereto becomes effective; , (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3iii) 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, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (4iv) 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 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 (5v) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A under of the ActRules 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 Placement Agents Underwriter promptly of all such filings.
(ivc) If, at any time when the Final Prospectus relating The Company will furnish to the Shares is required to be delivered under the Act (whether physically Representative or through compliance with Rule 172 under the Act or any similar rule)its counsel, the Company becomes aware without charge, two signed copies of the occurrence 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) The Company will comply with all the provisions of any event as a result of which the Final Prospectus, as then amended or supplemented, would, undertakings contained in the reasonable judgment of counsel to the Company or counsel 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.
(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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any and thereafter from time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationstime, the Company will promptly notify 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 Placement Agentseach of Underwriters, without charge, such number as many copies of copies thereof the Prospectus or any amendment or supplement thereto as the Placement Agents Representative may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement Agentsseveral Underwriters and by all dealers to whom the Shares may be sold, 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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, and (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (whether physically offering 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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) The Company will apply the net proceeds from the offering and sale of the Shares in and for any period of time thereafter during which 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required by law to be delivered under the Act (including in circumstances where connection therewith. If during such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion period of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, any event occurs as a result of which such Written Testing-shall occur that, in the-Waters Communication would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final Prospectus untrue in any material respect or that requires the making of any additions to or 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, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To mail and make any offer relating generally available to its stockholders as soon as practicable an earning statement covering the Shares twelve-month period ending September 30, 2000 that would constitute an Issuer Free Writing Prospectus without shall satisfy the prior written consent provisions of Section 11(a) of the Placement AgentsAct, and to advise you in writing when such statement has been so made available.
(viiih) The Company will retain in accordance 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 record holders of Common Stock or furnished to or filed with the Rules 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 Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel and include the appropriate legends as required by Company's accountants in connection with the Rules registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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 subjectthis Section.
(xij) The Company will To use its best efforts to cause include for quotation the Shares on the Nasdaq National Market and to be listed for trading on The Nasdaq Capital Market at maintain the time listing of the ClosingShares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(xiik) 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 will not at prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 p.m., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (iifiling thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusAct.
(xvim) The Company agrees that if That in connection with the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii)Directed Share Program, the Company will announce ensure that the impending release Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, Inc. (the "NASD") or waiver by press release through the NASD rules from sale, transfer, assignment, pledge or hypothecation for a major news services at least two business days before period of three (3) months following the effective 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 will direct the removal of such release 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 and stamp duties, similar taxes or waiverduties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program. Furthermore, the Company covenants with DLJ that the Company will comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(ia) The Registration Statement has Company shall, if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment thereto to be declared effective before the offering of the Securities may commence, use its best efforts to cause such post-effective amendment to become effectiveeffective at the earliest possible time. The Company shall comply fully and in a timely manner with the applicable provisions of Rule 424, and if Rule 430A under the Act is used or the filing of the Final Prospectus is otherwise required under and Rule 424(b) 434 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iib) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willadvise you promptly and, if requestedrequested by any of you, confirm such notification advice in writing, (1i) if and when the Prospectus or form of prospectus is sent for filing pursuant to Rule 424 under the Act and when any post-effective amendment to the Registration Statement becomes effective; , (2ii) of the receipt of any comments from the Commission that relate to the Registration Statement or any request by the Commission for any amendments amendment of or a supplement to the Registration Statement or Statement, any amendment or supplements to the Final Prepricing Prospectus or any Issuer Free Writing the Prospectus or for additional information; , (3iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, or of the Final Prospectus suspension of qualification of the Securities for offering or sale in any Issuer Free Writing Prospectusjurisdiction, or the initiation of any proceedings proceeding for that such purpose by the Commission or any state securities commission or other regulatory authority, and (iv) during the threat thereof; period referred to in subsection (4f) below, (A) of becoming aware any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the occurrence happening of any event event, including the filing of any information, document or report 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 Final Prospectus untrue in any material respect or that requires the making of any additions to or changes in the Registration Statement in order to state a material fact required by the Act to be stated therein or to make the Final statements therein not misleading or that makes any statement of a material fact made in the Prospectus (as then amended or supplemented) untrue or that requires the making of any additions to or changes in the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or in order to make the statements therein, in the light of the circumstances in under which they are were made, not misleading; , and (5B) of receipt by the Company of necessity to amend or supplement the Prospectus (as then amended or supplemented) 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 Statement, or any state securities commission or other regulatory authority shall issue an order suspending the offering contemplated hereby qualification or in connection with sales exemption of Common Stock pursuant to market making activities by The Representativethe 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 time.
(c) The Company shall furnish to each of you without charge (i) two (2) conformed copies (plus one (1) additional similarly conformed copy to your legal counsel) of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits filed therewith, (ii) 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, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (iv) two (2) copies of each of the exhibits to the Incorporated Documents.
(d) The Company has omitted shall not file any information from 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, or, prior to the end of the period of time referred to in subsection (f) below, file any document pursuant to Rule 430A under the ActExchange Act that will, it will use its best efforts upon filing, become an Incorporated Document, of which you shall not previously have been advised and provided a copy within two business days (or such reasonable amount of time as is necessitated by the exigency of such amendment, supplement or document) prior to comply the filing thereof and to which you shall reasonably object in writing.
(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 make all requisite filings with the Commission pursuant state securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, prior to said Rule 430A and to notify the Placement Agents promptly date of all such filingsthe Prospectus, of each Prepricing Prospectus so furnished by the Company.
(ivf) IfPromptly after the Registration Statement becomes effective, at any and from time when to time thereafter for such period as in the Final Prospectus relating to reasonable opinion of counsel for the Shares Underwriters a prospectus is required by the Act to be delivered under the Act (whether physically in connection with sales by any Underwriter or through compliance with Rule 172 under the Act or any similar rule)dealer, the Company becomes aware shall expeditiously furnish to each Underwriter and each dealer, without charge, as many copies of the occurrence Prospectus (and of any amendment or supplement to the Prospectus) as you may reasonably request for the purposes contemplated by the Act. The Company consents to the use of the Prospectus and any amendment or supplement thereto by you or any dealer in accordance with the provisions of the Act and with the state securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, both in connection with the offering or sale of the Securities and for such period of time thereafter as a prospectus is required by the Act to be delivered in connection therewith.
(g) If during the period specified in subsection (f) above any event shall occur as a result of which it becomes necessary, in the Final Prospectusjudgment of the Company or in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus (as then them amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will shall, as promptly notify as practicable, prepare and, subject to the Placement Agents and will promptly prepare and provisions of subsection (d) above, file with the Commission, at the Company’s expense, Commission an amendment to the Registration Statement or an appropriate amendment or supplement to the Final Prospectus so that corrects the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances under which they were made, be misleading, and the Prospectus, as so amended or supplemented, will comply with the Act or such statement or omission or effects such compliance other law, and will deliver shall expeditiously furnish to the Placement Agents, you without charge, charge such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents you may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xh) Prior to the sale any public offering of the Shares to the InvestorsSecurities, the Company will shall cooperate with you and with counsel for the Placement Agents and their counsel Underwriters in connection with the registration or qualification of the Shares Securities for offer offering and sale by the Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as the Placement Agents you may reasonably request; request (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 to take any action which that would subject it to general consent to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where in which it is not now so subject). The Company shall continue such qualification in effect so long as required by law for distribution of the Securities and shall file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification (provided, that the Company shall not be obligated to take any action that would subject it to consent to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction in which it is not now so subject).
(xii) The Company will use shall make generally available to its best efforts to cause security holders as soon as reasonably practicable a consolidated earnings statement covering a period of at least 12 months beginning after the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
"effective date" (xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including as defined in circumstances where such requirement may be satisfied pursuant to Rule 172 158 under the Act) and (b) completion of the Lock-Up PeriodRegistration Statement (but in no event later than 90 days after such date) that shall satisfy the provisions of Section 11(a) of the Act.
(xivi) If at For so long as any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingSecurities are outstanding, the Company will shall mail to each of you without charge as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) during the period specified in subsection (f) above, from time to time such other information concerning the Company as you may reasonably request.
(k) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities (other than (i) notify promptly the Representative so that use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented; Securities and (ii) amend or supplement commercial paper issued in the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xv) The Company will not, directly or indirectlyordinary course of business), without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated, which shall not be unreasonably withheld.
(l) The Company shall use the Placement Agentsproceeds from the sale of the Securities in the manner described in each of the Basic Prospectus and the Prospectus Supplement under the heading "Use of Proceeds."
(m) The Company shall not voluntarily claim, offer and shall actively resist any attempt to sellclaim, 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 the benefit of any option usuary laws against the holders of the Securities.
(n) If this Agreement shall terminate or warrant shall be terminated after execution pursuant to purchase any provision hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or other disposition), 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 shares of capital stock failure or refusal on the part of the Company to comply with the terms or securities convertible into, or exchangeable or exercisable for, shares of capital stock fulfill any of the Company, (the “Lock-Up Securities”) for a period of 180 days after the date conditions 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii)Agreement, the Company will announce agrees to reimburse you for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the impending release or waiver Underwriters) incurred by press release through a major news services at least two business days before the effective date of such release or waiveryou in connection herewith.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause obtain the Shares to be listed for trading on The Nasdaq Capital Market withdrawal or lifting of such order at the time of the Closingearliest possible time.
(xiib) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, To furnish to cause or result in, or which will constitute, stabilization you four (4) signed copies of the price 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 Shares Registration Statement as so filed and of each amendment to facilitate the sale or resale of any of the Sharesit, without exhibits, as you may reasonably request.
(xiiic) The Company will notify promptly To prepare the Representative if Prospectus, the Company ceases form and substance of which shall be satisfactory to be an Emerging Growth Company at any time prior you, and to file the later of (aProspectus in such form with the Commission within the applicable period specified in Rule 424(b) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act; during the period specified in Section 5(d) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationbelow, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.to
Appears in 1 contract
Samples: Underwriting Agreement (Lantronix)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsUnderwriter that:
(a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing, (i) The when the Registration Statement has become effective, 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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, (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Preliminary Prospectus or for additional information; , (3iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, or the initiation or contemplation of any proceedings proceeding for that purpose or such purposes, and (iv) within the threat thereof; period of time referred to in paragraph (4f) of becoming aware 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 Final 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 Final 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 (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 Underwriter 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
(b) If, at the time that the Registration Statement becomes effective, any information from the Registration Statement, pursuant to shall have been omitted therefrom in reliance upon Rule 430A under the Act, it will use its best efforts to comply with then promptly following the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company becomes aware execution 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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and RegulationsPricing Agreement, the Company will promptly notify the Placement Agents and will promptly prepare and file with the Commission, at in accordance with Rule 430A and Rule 424(b) under the Company’s expenseAct, 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) Neither the Company nor any of its subsidiaries will, prior to the earlier of the Option Closing Date or termination or expiration of the related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated in the Prospectus.
(d) The Company will not file any amendment to the Registration Statement or an make any amendment or supplement to the Final Prospectus that corrects such statement of which the Underwriter shall not previously have been advised or omission to which the Underwriter shall promptly after being so advised reasonably object in writing.
(e) Prior to the effective date of the Registration Statement, the Company has delivered or effects such compliance and will deliver to the Placement AgentsUnderwriter, without charge, copies of each form of Preliminary Prospectus in such number of copies thereof quantities as the Placement Agents you have reasonably requested or may hereafter reasonably request. The Company consents to the use use, in accordance with the provisions of the Final Prospectus Act and with the securities or any amendment or supplement thereto Blue Sky laws of the jurisdictions in which the Shares are offered by the Placement Agents, Underwriter and the Placement Agents agree to provide to each Investorby dealers, prior to the Closing, a copy effective date of the Final Registration Statement, of each Preliminary Prospectus and any amendments or supplements theretoso furnished by the Company.
(vf) The Company will furnish to On the Placement Agents and their counsel, without charge (a) one conformed copy effective date of the Registration Statement and thereafter from time to time during such period as originally filed with in the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (b) so long as opinion of counsel for the Underwriter a prospectus relating to the Shares is required by law to be delivered under in connection with offers or sales of the Act (whether physically Shares by the Underwriter or through compliance with Rule 172 under a dealer, the Act or any similar rule)Company will deliver to the Underwriter and each dealer, without charge, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents Prospectus and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.each
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents Underwriters as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, cause the Prospectus Supplement to be filed as required by Section 3(a) hereof (but only if you have not reasonably objected thereto by notice to the Company after having been furnished a copy a reasonable time prior to filing) and will notify you promptly of such filing. The Company will not during such period as the Final 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)dealer, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Underwriters within a reasonable period of time prior to the filing thereof and the Placement Agents Underwriters shall not have reasonably objected thereto in good faith.
(iiib) The Company will notify the Placement Agents Underwriters promptly, and will, if requested, will confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; , (2) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3) 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, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (4) 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 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; misleading and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 Underwriters, upon request and without charge, two signed copies of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus).
(d) The Company has omitted will comply with all the provisions of any information from undertakings contained in the Registration Statement, pursuant to Rule 430A 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 Placement Agents promptly of all such filings.
(ive) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the 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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agentseach 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 Placement Agents Underwriter may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement AgentsUnderwriters and by all dealers to whom the Shares may be sold, and both in connection with the Placement Agents agree to provide to each Investor, prior to the Closing, a copy offering or sale of the Final Shares and for any period of time thereafter during which the Prospectus and any amendments or supplements thereto.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares 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 Act (whether physically or through compliance Prospectus to comply with Rule 172 under law, 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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules forthwith prepare and Regulations all Issuer Free Writing Prospectuses not required to be 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 duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each Underwriter, without charge, such number of copies of such supplement or amendment to the Prospectus as such Underwriter may reasonably request. The Company shall not file any electronic road showdocument 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 which is not approved by the Underwriters after reasonable notice thereof.
(ixf) The Company will apply the net proceeds from the Prior to any public 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 the Placement Agents Underwriters and their 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 the Placement Agents Underwriters may reasonably requestrequest including, without limitation, 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.
(xig) During the period of five years commencing on the date hereof, the Company will, upon request for such item by an Underwriter, furnish to such Underwriter 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, upon request for such item by such Underwriter, furnish to such Underwriter a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will use make generally available to holders of its best efforts to cause securities as soon as may be practicable but in no event later than the Shares to be listed for trading on The Nasdaq Capital Market at the time last day of the Closingfifteenth 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).
(xiii) 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 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, 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 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 Underwriters with the NASD, and the fees and disbursements and other charges (other than counsel for the Underwriters) in connection therewith and 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 registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f), including the fees, disbursements and other reasonable charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (8) counsel to the Company and any surveyors, engineers, appraisers, photographers, accountants and other professionals engaged by or on behalf of the 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 potential investors and the hotel, travel and other expenses of the Company's employees in connection with any such "road show" or presentation; provided, however, that with respect to any fees, disbursements and other charges of counsel for the Underwriters in connection with the registration and qualification of the Shares under Blue Sky laws and the preparation of Blue Sky memorandum, the Company shall not be responsible for counsel fees, disbursements and other charges in excess of $15,000. The filing fee paid to the NASD shall not be considered to be "fees, disbursements or other charges" for the purposes of this Section 4(i) and shall be paid by the Company.
(j) 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, the Company will reimburse the Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of counsel to the Underwriters) reasonably incurred by it in connection herewith.
(k) 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 Firm Shares to facilitate the sale or resale of any of the Shares.
(xiiil) The Company will notify promptly apply the Representative if net proceeds from the offering and sale of the Shares to be sold by the Company ceases to be an Emerging Growth Company at any time prior to in the later manner set forth in the Prospectus under "Use of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up PeriodProceeds."
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xvm) The Company will not, directly or indirectlyand will cause each of its executive officers to enter into agreements with the Underwriters in the form set forth in EXHIBIT E to the effect that they will not, for a period of 60 days after the commencement of the public offering of the Shares, without the prior written consent of the Placement Agents, offer to sellPaineWebber Incorporated, sell, contract to sell, grant any option or warrant to purchase, make any short sale, sell or otherwise dispose of any Common Shares or rights to acquire Common Shares (or announce any offer, sale, grant of any option or warrant to purchase or other disposition), any shares of capital stock than in the case of the Company pursuant to employee and director stock options or securities convertible intostock option or purchase plans, the Company's dividend reinvestment plan, the acquisitions of units of Gables Realty Limited Partnership presented for redemption, and in exchange for property acquired from third-parties and pursuant to the exercise by the Underwriters of the Option, or exchangeable or exercisable forin the case of an individual, shares the pledge of capital stock of Common Shares as collateral for any loan from an institutional lender, provided the Companyloan-to-value ratio does not exceed 50%).
(n) The Company will not, (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 Shares, invoke the exercise of stock options outstanding as authority granted under Section 5.7 of the date hereof, Amended and Restated Declaration of Trust (iithe "DECLARATION OF TRUST") the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on to revoke the date hereof, and described exception contained in Section 5.6.2 of the Declaration of Trust under which shares transferred to an Underwriter in a public offering will not be deemed to be Excess Shares (as defined in the Final ProspectusDeclaration of Trust), notwithstanding the fact that the shares owned beneficially by the Underwriter may exceed the Ownership Limit (as defined in the Declaration of Trust).
(xvio) The Company agrees that if will continue to elect to qualify as a "real estate investment trust" under the Representative agrees Code, and will use its best efforts to waive or release any officer or director of continue to meet the Company from the lock-up restrictions in the letter agreements delivered pursuant requirements to Section 7(xiii), the Company will announce the impending release or waiver by press release through qualify as a major news services at least two business days before the effective date of such release or waiver"real estate investment trust."
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(a) The Company will advise you promptly and, if requested by you, will confirm such advice in writing (i) The when the Registration Statement has become effective, and effective (if Rule 430A under the Act is used or the filing not effective as of the Final Prospectus is otherwise required under Rule 424(btime and date of this Agreement) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement or any registration statement filed pursuant to Rule 462(b) under the Act if filed or becomes effective; , (2ii) 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 to the Registration Statement or any amendment or supplements to the Final Registration Statement, any Prepricing Prospectus or any Issuer Free Writing the Prospectus or for additional information; , (3iv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, jurisdiction or the initiation (or threatened initiation) of an proceeding for such purposes, and (v) within the period of time referred to in Section 5(c) below, of any proceedings for that purpose change in the Company's condition (financial or the threat thereof; (4) 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 Final Prospectus untrue in any material respect (as then amended or supplemented) or that requires the making of any additions thereto or changes in the Registration Statement or the Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 462(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 or supplement) or to which you have reasonably objected after being so advised, or which is not in compliance with the Act. The Company will prepare and file with the Commission any amendments or supplements to the Registration Statement or Prospectus which, it in the opinion of counsel of the several Underwriters may be necessary or advisable in connection with the distribution of the Shares by the Underwriters.
(d) The Company has delivered or will use its best efforts deliver to comply 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 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 Placement Agents promptly date of all such filingsthe Prospectus, of each Prepricing Prospectus so furnished by the Company.
(ive) IfAs 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, at the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any time when the Final Prospectus relating 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 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 Act Prospectus (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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver furnish to the Placement Agentseach Underwriter and to each dealer who has previously requested Prospectuses, without charge, such a reasonable number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretothereof.
(vf) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and counsel for the Placement Agents and their 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 the Placement Agents you may reasonably request; provideddesignate and will file such consents to service of process in suits, other documents as may be reasonably necessary in order to effect such registration or qualification, 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. In each jurisdiction in which the Shares shall have been qualified as above provided, the Company will make and file such statements and reports in each year as are or may be required by the laws of such jurisdiction. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(xig) The Company will use make generally available to its best efforts security holders a consolidated earnings statement, which need not be audited, covering a 12- 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 and Rule 158 under the Act, and will advise you in writing when such statement has been so made available.
(h) During the period of five years hereafter, the Company will furnish to cause you (i) as soon as practicable after the end of each fiscal year a copy of its Annual Report on Form 10-K, (ii) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or mailed to stockholders, and (iii) from time to time such other information concerning the Company as you may reasonably request. Until the termination of the offering of the Shares, the Company will timely file all documents, and any amendments to previously filed documents, required to be filed by it pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(i) The Company will apply the net proceeds from the sale of the Shares to be listed for trading on The Nasdaq Capital Market at sold by it hereunder substantially in accordance with the time of description set forth in the ClosingProspectus.
(xiij) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(k) The Company will not at sell, contract to sell or otherwise dispose of any time, directly Common Stock or indirectly, take any action intended, or which might reasonably be expected, rights to cause or result in, or which will constitute, stabilization purchase Common Stock until after the date 180 days from the effective date of the price Registration Statement, without the prior written consent of Xxxxxxx Xxxxx & Associates, Inc., except to the underwriters pursuant to this Agreement, and except that the Company may issue Common Stock upon the exercise or conversion of warrants, stock options, preferred stock or convertible debentures issued and outstanding at the time of effectiveness of the Shares to facilitate Registration Statement and described in the sale or resale of any of Registration Statement, and except that the SharesCompany may grant options under the Company's Stock Option Plans.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xvl) The Company will not, directly or indirectly, without take any action that would constitute, or any action designed, or which might reasonably be expected to cause or result in or constitute, under the prior written consent Act or otherwise, stabilization or manipulation of the Placement Agentsprice of any security of the Company to facilitate the sale or resale of the Shares.
(m) If at any time during the 90-day period after the first date that any of the Shares are released by you for sale to the public, offer any rumor, publication, or event relating to sellor affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock (including the Shares) has been or is likely to be materially affected (regardless of whether such rumor, sellpublication, contract or event necessitates a supplement to sellor amendment of the Prospectus), grant any option the Company will, after written notice from you of advising the Company to the effect set forth above, promptly consult with you concerning the advisability and substance of, and, if appropriate, disseminate, a press release or warrant other public statement responding to purchaseor commenting on such rumor, make any short salepublication, or event.
(n) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Shares, or otherwise dispose of (or announce any offerconduct its business, sale, grant of any option or warrant to purchase or other disposition), any shares of capital stock of in such a manner as would require the Company or securities convertible intoany Subsidiary (as defined below) to register as an investment company under the Investment Company Act of 1940, 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectusamended.
(xvio) The Company will maintain a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of the Nasdaq National Market or any national securities exchange on which the Common Stock is then listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for its Common Stock.
(p) The Company hereby agrees that this Agreement shall be deemed, for all purposes, to have been made and entered into in Pinellas County, Florida. The Company agrees that if any dispute hereunder shall be litigated solely in the Representative Circuit Court of the State of Florida in Pinellas County, Florida or in the United States District Court for the Middle district of Florida, Tampa Division, and further agrees to waive or release any officer or director of submit itself to the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company will announce the impending release or waiver by press release through a major news services at least two business days before the effective date personal jurisdiction of such release or waivercourts.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followseach Underwriter:
(ia) The Registration Statement has become effectiveBeginning on the date hereof and continuing until the date that, and if in the opinion of counsel for the Underwriters, a prospectus is (other than by reason of the exemption in Rule 430A 172 under the Act is used or the filing of the Final Prospectus is otherwise required under Rule 424(bSecurities Act) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) The Company will not, during such period as the Final 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 (whether physically or through compliance with Rule 172 under the Act or any similar rule“Prospectus Delivery Period”), file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify advise the Placement Agents Representatives promptly, and willand, if requestedrequested by the Representatives, confirm such notification advice in writing, (1i) when any post-effective amendment to the Registration Statement has been filed or becomes effective; (2ii) 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 Final Prospectus or the receipt of any Issuer Free Writing Prospectus comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (3iv) upon receipt of notice 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; (4) 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 (5) 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 or preventing or suspending the use of any preliminary prospectus, any documents contained in connection with the offering contemplated hereby Pricing Disclosure Package or in connection with sales the Prospectus or the initiation or threatening of Common Stock any proceeding for that purpose or pursuant to market making activities by The Representative, Section 8A of 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 under the Securities 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 Placement Agents promptly of all such filings.
; (ivv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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, 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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 therein, in the light of the circumstances when 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 counsel to the Placement AgentsUnderwriters, at any time it is necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 Placement Agents, without charge, such number of Underwriters and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus Underwriters or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 To cooperate with the Placement Agents Representatives and their counsel for the 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 the Placement Agents Representatives 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 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.
(xig) The Company will use To make generally available to its best efforts to cause security holders as soon as practicable an earnings statement covering the Shares to be listed for trading on The Nasdaq Capital Market at twelve-month period that shall satisfy the time provisions of Section 11(a) of the ClosingSecurities Act beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(xiih) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expectedFor a period of one year from the date of this Agreement, to cause furnish to the Representatives as soon as available copies of all reports or result in, 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 will constitute, stabilization any class of securities of the price Company is listed (except for so long as the Company is subject to the reporting requirements of either Section 13 or 15 of the Shares Exchange Act, and such communications are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval system (or any successor thereto), the Company shall not be required to facilitate furnish to the sale or resale of any of Representatives such communications) and such other publicly available information concerning the SharesCompany and its subsidiaries as the Representatives may reasonably request.
(xiiii) The Company will notify promptly (A) Whether or not the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares transactions contemplated by this Agreement are consummated or this Agreement is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingterminated, the Company will pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) notify promptly the Representative so that use costs incident to the authorization, sale, preparation and delivery of the Written Testing-the-Waters Communication may cease until it is amended or supplementedShares and any taxes payable in that connection; (ii) amend or supplement the Written Testing-the-Waters Communication costs incident to correct such statement or omissionthe preparation, printing and filing under the Securities Act of the Registration Statement, the preliminary prospectus, any Issuer Free Writing Prospectus, the Pricing Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; and (iii) supply any 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 of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock fees and expenses of the Company, ’s counsel and independent accountants; (the “Lock-Up Securities”) for a period of 180 days after the date of this Agreement (the “Lock-Up Period”), except with respect to (iiv) the issuance of shares of Common Stock upon the exercise of stock options outstanding as of the date hereof, fees and (ii) the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described expenses incurred in the Final Prospectus.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.connection with the
Appears in 1 contract
Samples: Underwriting Agreement (Standard Pacific Corp /De/)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To mail and make any offer relating generally available to its stockholders as soon as practicable an earnings statement covering the Shares that would constitute an Issuer Free Writing Prospectus without twelve-month period beginning after the prior written consent effective date of the Placement AgentsRegistration Statement 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.
(viiih) The Company will retain in accordance 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 record holders of Common Stock or furnished to or filed with the Rules Commission or any national securities exchange on which any class of securities of the Company is listed and Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiary as you may reasonably request.
(i) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel, the Company's accountants and include any Selling Stockholder's counsel (in addition to the appropriate legends as required by Company's counsel) in connection with the Rules registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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 supercede 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.
(xij) The Company will To use its best efforts to cause the Shares do and perform all things required or necessary to be listed for trading on The Nasdaq Capital Market at done and performed under this Agreement by the time of Company prior to the Closing.
(xii) The Company will not at Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiik) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents you as follows:: --------------------------
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company shall use its best efforts to cause the Registration Statement and any amendments to become effective as promptly as practicable and will notnot at any time, during such period as whether before or after the Final Prospectus would be required by law to be delivered in connection with sales effective date of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Registration Statement, file any amendment or supplement to the Registration Statement or supplement to the Final 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 Securities by you of which you and your counsel shall first not previously have been submitted advised and furnished with a copy, or to 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 Placement Agents within a reasonable period Company), or which is not in compliance with the Act, the Securities Exchange Act of time prior to 1934, as amended (the filing thereof "Exchange Act"), or the Rules and Regulations. As soon as the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company is advised or obtains knowledge thereof, the Company will notify the Placement Agents promptlyadvise you, and will, if requestedas soon as practicable, confirm such notification in writing, (1i) 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-post- effective amendment to the Registration Statement becomes effective; , (2) 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; (3ii) 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 Prospectusinitiation, or the initiation threatening, of any proceedings for that purpose or the threat thereof; (4) 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 (5) 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 Securities for offering or sale in connection with any jurisdiction or of the offering contemplated hereby initiation, or in connection with sales the threatening, of Common Stock pursuant 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 market making activities by The Representativethe 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 any such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A 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 Placement Agents promptly of all such filingsor suspension.
(ivb) IfThe Company will furnish to you, at without charge, three signed copies of the Registration Statement and any time when the Final Prospectus relating 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 Shares Registration Statement or any amendment or supplement to the Prospectus, and will not file any such amendment or supplement to which you shall reasonably object in writing or which is not in compliance with the Act.
(d) From the date hereof, and thereafter from time to time, the Company will deliver to you, without charge, as many copies of the Prospectus, or any 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 Securities may be sold, both in connection with the offering or sale of the Securities and for such period of time thereafter as the Prospectus is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company becomes aware in connection therewith. If during such period of the occurrence of time any event as a result of shall occur which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or your counsel to should be set forth in the Placement Agents, 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 made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationslaw, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance thereto and will deliver to the Placement Agentsyou, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents you may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xe) Prior to the sale any public offering of the Shares to the InvestorsSecurities by you, the Company will cooperate with the Placement Agents you and their your 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 you request. The Company will pay all reasonable fees and expenses (including reasonable fees and expenses of counsel) relating to qualification of the Placement Agents Securities under such securities or Blue Sky laws and in connection with the determination of the eligibility of the Securities for investments under the laws of such jurisdictions as you may reasonably request; provideddesignate, 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.
(xif) So long as any of the Securities remain outstanding, the Company will furnish to its securityholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants), and will deliver to you, as representative for the underwriters:
(i) concurrently with furnishing such quarterly reports to its securityholders, statements of income of the Company for each quarter in the form furnished to the Company's securityholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its securityholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any state securities commission, NASDAQ/SCMS, the NASD or any securities exchange;
(v) every press release and every material news item regarding each of the Company and the Subsidiaries or their respective affairs which were released or prepared by or on behalf of the Company or any of the Subsidiaries; and
(vi) any additional information of a public nature concerning the Company or any of the Subsidiaries (and any future subsidiaries) or their respective businesses which you may request. During such period, if the Company has active subsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(g) The Company will pay all expenses in connection with (1) the 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 Securities (other than transfer taxes), (3) the rating of the Securities 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 Securities by you or by dealers to whom Securities may be sold, and (5) filings with the National Association of Securities Dealers, Inc. ("NASD").
(h) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at net proceeds from the time sale of the ClosingSecurities in the manner specified in the Prospectus under the caption "Use of Proceeds.
(xii) The Company " No portion of the net proceeds will not at any timebe used, directly or indirectly, take to acquire or redeem any securities issued by the Company.
(i) The Company will appoint and retain, while any of the Securities remain outstanding, a transfer agent for the Securities, and, if necessary, a registrar for the Securities (who may be the transfer agent), and will make arrangements to have available at the offices of the transfer agent certificates for the Securities in such quantities as may, from time to time, be necessary. As of the date of this Agreement, the transfer agent for the securities of the Company is American Securities Transfer and Trust Corporation, 0000 Xxxxxxxx Xxxxxx, Suite 1825, Denver, CO 80202.
(j) For a period of five years from the date hereof, the Company shall use its best efforts to maintain the listing of its common stock on the National Association of Securities Dealers, Inc. ("NASD") over-the-counter market.
(k) Neither the Company nor any of the Subsidiaries nor any of their respective executive officers, directors, principal stockholders or affiliates (within the meaning of the Rules and Regulations) will take, directly or indirectly, 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 any securities of the Shares to facilitate Company in violation of the sale or resale Exchange Act.
(l) Until the completion of the distribution of the Securities, neither the Company nor any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time Subsidiaries shall, without prior to the later written consent of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) you and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationyour counsel, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xv) The Company will notissue, directly or indirectly, without any press release or other communication or hold any press conference with respect to the prior written consent Company, any of the Placement AgentsSubsidiaries, offer to selltheir respective activities or the offering contemplated hereby, 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 of than trade releases issued in the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock ordinary course of the Company, (the “Lock-Up Securities”) for a period of 180 days after the date of this Agreement (the “Lock-Up Period”), except 's business consistent with past practices 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusCompany's operations. 5.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents Underwriter as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, either prior to the Effective Date or thereafter during such period as the Final Prospectus would be is 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 (whether physically or through compliance with Rule 172 under the Act Underwriter or any similar ruledealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172), file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Underwriter within a reasonable period of time prior to the filing thereof and the Placement Agents Underwriter shall not have reasonably objected thereto in good faith.
(iiib) The Company will notify the Placement Agents Underwriter promptly, and will, if requested, will confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; , (2) of the receipt of any comments from or any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Final Registration Statement, any Preliminary Prospectus or any Issuer Free Writing the Prospectus or for additional information; , (3) 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, notice objecting to its use or the initiation of any proceedings for that purpose or the threat thereof; , (4) 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 Final Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement Statement, any Preliminary Prospectus or the Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; , and (5) of receipt by the Company or any representative or attorney of the Company of any 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 Underwriter, without charge, four copies of the signed 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) The Company has omitted will comply with all the provisions of any information from undertakings contained in the Registration Statement.
(e) The Company will deliver to the Underwriter, without charge, as many copies of the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto, as the Underwriter 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 Underwriter and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith (including in circumstances where such requirement may be satisfied pursuant to Rule 430A under 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 Underwriter should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it will use its best efforts was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, subject to the provisions of Section 5(a) hereof, the Company will forthwith prepare and make all requisite filings duly file with the Commission pursuant to said Rule 430A an appropriate supplement or amendment thereto, and to notify the Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating will deliver to the Underwriter, without charge, such number of copies thereof as the Underwriter may reasonably request. The Company shall not file any document under the Exchange Act before the termination of the offering of the Shares is required by the Underwriter if such document would be deemed to be delivered under incorporated by reference into the Act (whether physically Prospectus which is not approved by the Underwriter after reasonable notice thereof. If there occurs an event or through compliance with Rule 172 under the Act or any similar rule), the Company becomes aware of the occurrence of any event development as a result of which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, 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 Underwriter 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(vf) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents Underwriter and their counsel to the Underwriter 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 the Placement Agents Underwriter may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xig) During the period of five years commencing on the date hereof, the Company will furnish to the Underwriter 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 Underwriter a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will use make generally available to holders of its best efforts to cause securities as soon as may be practicable but in no event later than the Shares to be listed for trading on The Nasdaq Capital Market at the time last day of the Closingfifteenth 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), with respect to the Primary Entities, for a period of 12 months commencing after the Effective 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.
(xiii) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (other than by notice given by the Underwriter terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Underwriter 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 Underwriter for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriter) reasonably incurred by the Underwriter in connection herewith.
(j) 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.
(xiiik) The Company will notify promptly apply the Representative if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion offering and sale of the period when a prospectus relating to Shares in the Shares is required to be delivered manner set forth in the General Disclosure Package and the Prospectus under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion “Use of the Lock-Up PeriodProceeds.”
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xvl) The Company will notuse its best efforts to have the Shares listed, directly or indirectlysubject to notice of issuance, without on the New York Stock Exchange.
(m) The Company represents and agrees that, unless it obtains the prior written consent of the Placement AgentsUnderwriter, and the Underwriter, 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, it has not made and will not make any offer relating to sellthe 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 Underwriter 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 the requirements of Rules 164 and 433 of the 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 the 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 or (ii) information that describes the final terms of the Shares or their offering.
(n) During the period beginning from the date hereof and continuing to and including the date 60 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option or warrant to purchase, make any short sale, sale or otherwise dispose of (or announce any offerdispose, saleexcept as provided hereunder, grant of any option or warrant to purchase or other disposition), any shares of capital stock securities of the Company that are substantially similar to the Shares, including but not limited to any options 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 warrants 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 purchase shares of Common Stock or stock options under any benefit plan securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any such substantially similar securities (other than pursuant to the Company’s 1997 Stock Option and Incentive Plan, the Company’s 2012 Equity and Performance-Based Incentive Compensation Plan, the Company’s 2003 Stock Option and Incentive Plan and the Company’s Retirement Plan for Non-Employee Directors, upon exchange of interests in the Company existing on the date hereof, and Operating Partnership or as described in the Final Registration Statement, the General Disclosure Package and the Prospectus.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), without the Company 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 release or waiverUnderwriter’s prior written consent.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as follows:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iib) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Agreement, file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iiic) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (2) 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 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); (3) 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, but only during the period mentioned in Section 4(b); (4) 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 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 (5) 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents promptly of all such filings.
(ivd) If, at any time when the Final a Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, 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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(ve) The Company will furnish furnish, upon request, to the Placement Agents and their its counsel, without charge (ai) 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 (bii) so long as a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request.
(vif) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xg) Prior to the sale of the Shares to the Investors, the Company will cooperate with the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xih) The Company will apply the net proceeds from the offering and sale of the Shares in the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(i) The Company will use its best efforts to cause ensure that the Shares to be are listed for trading or quoted on The Nasdaq Capital the NASDAQ Global Market at the time of the Closing.
(xiij) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents Agent as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule“Prospectus Delivery Period”), file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Agent within a reasonable period of time prior to the filing thereof and the Placement Agents Agent shall not have reasonably objected thereto in good faith.
(iiib) The During the Prospectus Delivery Period, the Company will notify the Placement Agents Agent promptly, and will, if requested, will confirm such notification advice in writing, (1i) when any post-effective amendment to the Registration Statement becomes effective; , (2ii) 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 Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3iii) 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 Final Prospectus or any Issuer Free Writing Prospectus, Statement or the initiation of any proceedings for that purpose or the threat (known by the Company) thereof; (4) 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 (5iv) 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 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 Placement Agents promptly of all such filings.
(ivc) If, at any time when the Final a Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, 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 counsel to the Placement Agents, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, necessary at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents and Agent and, subject to Section 4(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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement Agents, Agent without charge, such number of copies thereof as the Placement Agents Agent may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretoAgent.
(vd) The Company will furnish to the Placement Agents Agent and their its counsel, upon request, without charge charge, (ai) 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 (bii) so long as a prospectus Prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Agent may reasonably request.
(vie) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xf) Prior to the sale of the Shares to the Investors, the Company will cooperate with the Placement Agents Agent and their 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 the Placement Agents Agent may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process or taxation in any jurisdiction where it is not now so subject.
(xig) The Company will use make generally available to holders of its best efforts to cause securities, as soon as may be practicable, but in no event later than the Shares to be listed for trading on The Nasdaq Capital Market at the time last day of the Closingfifteenth 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).
(xiih) 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 prohibited by Regulation M of the price Exchange Act in connection with the distribution of the Shares to facilitate the sale or resale of any of the Sharescontemplated hereby.
(xiiii) The Company will notify promptly apply the Representative if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion offering and sale of the period when a prospectus relating to Shares in the Shares is required to be delivered manner set forth in the Prospectus under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion caption “Use of the Lock-Up PeriodProceeds.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents 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) The when the Registration Statement has become effective, if and if Rule 430A under when 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 the Placement Agents, sent for filing pursuant to Rule 424(b) under 424 of the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; , (2ii) 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 Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, or of the Final Prospectus suspension of qualification of the Securities for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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 (4iv) 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 Final 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 Final 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 (5) 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 hereby qualification or in connection with sales exemption of Common Stock pursuant to market making activities by The Representativethe 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 the Registration Statement, pursuant to Rule 430A 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 Placement Agents promptly of all such filingstime.
(ivc) IfPromptly after the Registration Statement becomes effective, at any and from time when the Final Prospectus relating to the Shares time thereafter for such period as in your reasonable judgment a prospectus is required to be delivered under the Act (whether physically or through compliance in connection with Rule 172 under the Act or any similar rule), the Company becomes aware sales of the occurrence Securities by an Underwriter or a dealer, it will furnish to each Underwriter and each dealer, without charge, as many copies of the Prospectus, including all documents incorporated by reference therein, (and of any amendment or supplement to the Prospectus) as you may reasonably request.
(d) If during the period specified in paragraph (c) of this Section 4 any event shall occur as a result of which it becomes necessary to amend or supplement the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany law, the Company will promptly notify the Placement Agents and it 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 Final Prospectus so that corrects such statement the statements in the Prospectus, as so amended or omission or effects such compliance supplemented, will not, in the light of the circumstances existing as of the date the Prospectus is so delivered, be misleading, and will deliver comply with applicable law, and will promptly notify you of such event and amendment or supplement and furnish to the Placement Agents, you without charge, charge such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents you may reasonably request.
(e) It will make generally available to its security holders, as soon as practicable and for the time period specified by Rule 158 under the Act, a consolidated earnings statement which shall satisfy the provisions 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 reasonable 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 Indentures and all other agreements, 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 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) The 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 Xxxxxxxx & 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 Rule 2720 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 Trustees, 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 comply 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 undertakings contained 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 such amendment or supplement is required by law to be filed; it will furnish to you at or prior to the filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Registration StatementStatement or Prospectus; and it will prepare and file with the Commission, promptly upon your reasonable request, any amendment or supplement 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 you, and will use its best efforts to cause the same to become effective as promptly as possible.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xi) Prior to the sale any public offering of the Shares to the InvestorsSecurities, the Company it will cooperate with the Placement Agents you and their counsel 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 you may request. The Company will continue such qualification in effect so long as required by law for distribution of the Placement Agents Securities and will file such consents to service of process or other documents as may reasonably request; providedbe 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).
(xij) 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 and any definitive proxy or information statement 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 use its best efforts to cause the Shares Securities to be listed for trading on The Nasdaq Capital Market at the time of the ClosingNYSE.
(xiik) The Company To the extent permitted by law, it will not at voluntarily claim, and will actively resist any timeattempts to claim, directly or indirectly, take the benefit of any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization usury laws against the holders of the price of the Shares to facilitate the sale or resale of any of the SharesSecurities.
(xiiil) The Company It will notify promptly use the Representative if proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion sale of the period when a prospectus relating to Securities in the Shares is required to be delivered manner described in the Prospectus under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion caption "Use of the Lock-Up PeriodProceeds."
(xivm) If at any time following During the distribution period beginning on the date of any Written Testing-the-Waters Communicationthis Agreement and continuing to and including the Closing Date, 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 statements therein in the light of the circumstances under which they were made at such time it will not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 selloffer, sell, contract to sell, grant any option or warrant to purchase, make any short sale, sell 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 debt securities of the Company or securities convertible intowarrants, rights, or exchangeable or exercisable for, shares of capital stock options to purchase debt securities of the Company, 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 other than (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding as of the date hereof, Securities and (ii) the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described commercial paper issued in the Final Prospectusordinary course of business), without your prior written consent.
(xvin) The Company agrees that if It will use its best efforts to do and perform all things required to be done and performed under this Agreement by it prior to or after the Representative agrees Closing Date and will use its reasonable best efforts to waive or release any officer or director satisfy all conditions precedent on its part to be satisfied prior to the delivery of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiverSecurities.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents Agent as follows:
(ia) 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 the Placement AgentsAgent, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Agent promptly following such filing.
(iib) 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 Offered Securities by an underwriter or dealer in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Agreement, file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents Agent within a reasonable period of time prior to the filing thereof and the Placement Agents Agent shall not have reasonably objected thereto in good faith.
(iiic) The Company will notify the Placement Agents Agent promptly, and will, if requested, confirm such notification in writing, : (1i) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (2ii) 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 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); (3iii) 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, but only during the period mentioned in Section 4(b); (4iv) 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (5v) 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents Agent promptly of all such filings.
(ivd) If, at any time when the Final a Prospectus relating to the Shares Offered Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, 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 counsel to the Placement AgentsAgent, 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 counsel to the Placement AgentsAgent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsAgent, at any time to amend or supplement the Final Prospectus Prospectus, the Pricing Disclosure Materials or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement AgentsAgent, without charge, such number of copies thereof as the Placement Agents Agent may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretoAgent.
(ve) The Company will furnish furnish, upon request, to the Placement Agents Agent and their its counsel, without charge charge: (ai) 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 (bii) so long as a prospectus relating to the Shares Offered Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Agent may reasonably request.
(vif) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xg) Prior to the sale of the Shares Offered Securities to the Investors, the Company will cooperate with the Placement Agents Agent and their 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 the Placement Agents Agent may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xih) 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.”
(k) The Company will use its best efforts to cause ensure that the Shares to be Offered Securities are listed for trading or quoted on The Nasdaq Capital Market the OTC Bulletin Board at the time of the Closing.
(xiil) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents Agent as follows:
(ia) The When 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 the Placement Agents, ) pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents 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 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Registration Period, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, except as required by law, unless a copy thereof shall first have been submitted to the Placement Agents Agent within a reasonable period of time prior to the filing thereof and the Placement Agents Agent shall not have reasonably and timely objected thereto in good faith.
(iiid) The Company will notify the Placement Agents Agent promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effectiveeffective at any time during the Registration Period; (2) 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 Prospectuses or for additional informationinformation at any time during the Registration Period; (3) 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, at any time during the Registration Period; (4) 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 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 (5) 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents Agent promptly of all such filings.
(ive) If, at any time when the Final a Prospectus relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, 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 counsel to the Placement AgentsAgent, 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 counsel to the Placement AgentsAgent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsAgent, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents and 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 or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement AgentsAgent, without charge, such number of copies thereof as the Placement Agents Agent may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement AgentsAgent, and the Placement Agents agree Agent agrees to provide to each Investor, prior to the Closing, a copy of the Final Prospectus and any amendments or supplements thereto.
(vf) The Company will furnish to the Placement Agents Agent and their its counsel, without charge (ai) 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 (bii) so long as a prospectus relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Agent may reasonably request.
(vig) The Company will comply with all the undertakings contained in the Registration Statement.
(viih) The Company will not 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.Agent, and unless counsel to the Company and the Placement Agent agrees that the Company is not an “ineligible issuer” and is otherwise eligible to use a free writing prospectus pursuant to Rule 405;
(viiii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed, and timely file and include the appropriate legends as required by filed pursuant to 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.
(ix) 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.”
(xj) Prior to the sale of the Shares Units to the Investors, the Company will cooperate with the Placement Agents Agent and their 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 the Placement Agents Agent may reasonably and timely request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xik) The Company will use its best efforts apply the net proceeds from the offering and sale of the Units in substantially the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(l) The Company will take all actions necessary to cause ensure that the Shares to be listed and the Warrant Shares are eligible for trading trading, when issued on The Nasdaq Capital Market the OTC Bulletin Board at the time of Closing, to the Closingextent such actions are within its control.
(xiim) 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.
(xiiin) The Company will notify promptly shall comply with all of the Representative if terms and conditions set forth in the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters CommunicationAgreement, 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 statements therein in the light of the circumstances under which they were made at such time not misleadingincluding without limitation, the Company will (i) notify promptly covenant that it shall not consent to any request by any other party subject to a lock-up agreement to permit the Representative so that use sale by such party 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 correct such statement or omission; and (iii) supply any 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 of the 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusStock.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a prospectus is required by law to be delivered under in connection with sales by an Underwriter
(e) If during the Act (whether physically or through compliance with Rule 172 under the Act or any similar ruleperiod 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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To mail and make any offer relating generally available to its stockholders as soon as practicable an earnings statement covering the Shares twelve-month period ending November 30, 1998 that would constitute an Issuer Free Writing Prospectus without shall satisfy the prior written consent provisions of Section 11(a) of the Placement AgentsAct, and to advise you in writing when such statement has been so made available.
(viiih) The Company will retain in accordance 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 record holders of Common Stock or furnished to or filed with the Rules Commission or any national securities exchange on which any class of securities of the Company is listed and Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel and include the appropriate legends as required by Company's accountants in connection with the Rules registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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
(vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar or depositary (including DTC), 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.
(xij) The Company will To use its best efforts to cause list, subject to notice of issuance, the Shares on the NYSE and to be listed for trading on The Nasdaq Capital Market at maintain the time listing of the ClosingShares on the NYSE for so long as the Shares are outstanding.
(xiik) 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 will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, prior to cause or result in, or which will constitute, stabilization of the price of Closing Date and to satisfy all conditions precedent to the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees ------------------------- with the Placement Agents as followsUnderwriter that:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) a. The Company will not, during such period as advise 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willUnderwriter promptly and, if requestedrequested by the Underwriter, will confirm such notification advice in writing, (1i) when any post-post- effective amendment to the Registration Statement is filed or becomes effective; , and of the filing of any final prospectus or supplement or amendment to the Prospectus, (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Preliminary Prospectus or for additional information; , (3iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, or the initiation or contemplation of any proceedings proceeding for that purpose or such purposes, and (iv) within the threat thereof; period of time referred to in paragraph (4g) of becoming aware 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 Final 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 Final Prospectus (as then amended or supplemented) in order to make the statements therein, in light of therein not misleading or to amend or supplement the circumstances in which they are made, not misleading; and (5) of receipt by Prospectus 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 elects not to rely on Rule 434, the Registration StatementCompany will provide the Underwriter with copies of the form of Prospectus in such numbers as the Underwriter may reasonably request and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the Act, pursuant to by the close of business in San Francisco on the business day immediately succeeding the date hereof.
b. The Company will prepare and file with the Commission, in accordance with Rule 430A and Rule 424(b) under the Act, it will use its best efforts copies of an amended Prospectus, or, if required by Rule 430A, a post-effective amendment to comply with the provisions of and make Registration Statement (including an amended Prospectus) containing all requisite filings with the Commission pursuant to said Rule 430A and to notify the Placement Agents promptly of all such filingsinformation so omitted.
(iv) Ifc. The Company will, at prior to the Closing Date, not incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated in the Prospectus.
d. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not previously have been advised or to which the Underwriter shall promptly after being so advised reasonably object in writing.
e. On the effective date of the Registration Statement and thereafter from time when to time during such period as in the Final Prospectus opinion of counsel for the Underwriter a prospectus relating to the Shares is required by law to be delivered under in connection with offers or sales of the Act (whether physically Shares by the Underwriter or through compliance with Rule 172 under the Act or any similar rule)a dealer, the Company becomes aware will deliver to the Underwriter and each dealer, without charge, as many copies of the occurrence Registration Statement and the Prospectus (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 Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of the Company, or in the opinion of counsel for the Underwriter, should be set forth in the Prospectus in order to ensure that no part of the Company or counsel to the Placement Agents, 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 Underwriter, file with the Commission and deliver, without charge to the dealers (whose names and addresses will be furnished by the Underwriter to the Company) to whom shares have been sold by the Underwriter 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to will comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably requeststandards set forth in this sentence. The Company consents to the use of the Final such Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to in accordance with the Placement Agents and their counsel, without charge (a) one conformed copy provisions of the Registration Statement as originally filed Act and with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (b) so long as a prospectus relating to securities or Blue Sky laws of the jurisdictions described in the preliminary Blue Sky memorandum in which the Shares are lawfully offered by the Underwriter 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 is required by law to be delivered in connection therewith. In case the Underwriter is required to be delivered under the Act deliver a Prospectus (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 and any amendment or supplement thereto as thereto) more than nine months after the Placement Agents may reasonably first date upon which the Shares are offered to the public, the Company will, upon request, but at the expense of the Underwriter, promptly prepare and furnish the Underwriter with reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Act.
(vi) f. The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents Underwriter and their counsel for the Underwriter in connection with the registration or qualification of the Shares for offer and sale by the Underwriter and by dealers under the state securities or Blue Sky laws of such jurisdictions as the Placement Agents Underwriter may designate, will continue such registrations or qualifications in effect so long as reasonably requestrequired 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 to (i) qualify to do business in any jurisdiction where it is not now so qualified qualified, (ii) 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.
g. For a period of five years after the date hereof:
i. the Company will furnish to the Underwriter (xiA) 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 periodic 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 Underwriter may reasonably request;
ii. if at any time during such five-year period the Company shall cease filing with the Commission the periodic reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (g)(i) above, the Company will forward to its shareholders generally and the Underwriter (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 Underwriter 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).
h. The Company will use make generally available to its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time security holders an earnings statement of the ClosingCompany, which need not be audited, covering a 12-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 promulgated thereunder (including Rule 158).
(xii) i. The Company will not at sell, contract to sell or otherwise dispose of any time, directly Common Stock or indirectly, take any action intended, or which might reasonably be expected, rights to cause or result in, or which will constitute, stabilization purchase Common Stock for a period of 120 days after the date of the price of the Shares to facilitate the sale or resale of any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xv) The Company will not, directly or indirectly, Prospectus 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 Underwriter (or announce any offer, sale, grant of any option or warrant to purchase or other disposition), any shares of capital stock of the 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) than the issuance of shares of Common Stock upon pursuant to the exercise of Company's stock options outstanding as of the date hereof, option plan(s) and (ii) the issuance of shares of Common Stock or stock options under any certain other employment benefit plan arrangements of the Company existing on in an aggregate amount not to exceed 5 percent of the date hereof, Shares). The Company will also use its best efforts to obtain similar agreements from each of its executive officers and described directors and all persons who own at least 5 percent of the Common Stock after the consummation of the Offering.
j. The Company will apply the net proceeds from the sale of the Shares to be sold by it under this Agreement for the purposes set forth in the Final ProspectusProspectus under the caption "Use of Proceeds.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver."
Appears in 1 contract
Samples: Underwriting Agreement (Guaranty Bancshares Inc /Tx/)
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(ia) 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 under or a post-effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject use its best efforts to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement or Statement, any amendment or supplements to the Final Preliminary Prospectus or any Issuer Free Writing the Prospectus or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the 4 4 effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4) otherwise), results of becoming aware operations or business prospects, 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 under the Act, it will use its best efforts to comply Statement as originally filed with the provisions Commission and of each amendment thereto, including financial statements and make all requisite filings exhibits to the Registration Statement 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, but without exhibits, as you may reasonably request. The copies of the Registration Statement and each amendment thereto furnished to you will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to said Rule 430A and EDGAX, xxcept to notify the Placement Agents promptly of all such filings.extent permitted by Regulation S-T.
(ivd) If, at The Company will not (i) file any time when the Final Prospectus relating amendment to the Shares 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 in writing after being so advised or (ii) so long as, in the written opinion of counsel to the 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 Underwriter or dealer, file any information, documents or reports pursuant to the Act 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.
(whether physically or through compliance with Rule 172 under e) Prior to the Act or any similar rule)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 Preliminary 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 Preliminary 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 to the Underwriters a Prospectus is required by the Act to be delivered in connection with sales by any 5 5 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 event amendment thereof or supplement thereto) as a result you may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAX, xxcept to the extent permitted by Regulation S-T. The Company consents to the use of the Prospectus (and of any amendment thereof 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 Final ProspectusShares 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 written opinion of counsel to 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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents and will promptly prepare and provisions of paragraph (d) above, file with the Commission, at the Company’s expense, Commission an appropriate amendment thereof or supplement thereto and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance Underwriters and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretothereof.
(vg) The Company will furnish cooperate with you and with counsel to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and their 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 the Placement Agents you may reasonably requestdesignate 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.
(xih) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a 12-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 New York Stock Exchange, and (ii) from time to time such other information concerning the Company as you may reasonably request.
(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) For a period of 180 days after the date hereof (the "Lock-up Period"), without the prior written consent of Merrxxx Xxxcx xxx Saloxxx Xxxxx Xxxnxx, xxe Company will not offer, sell, contract to sell or otherwise dispose of any shares of common stock of the Company (or any securities convertible into or exchangeable or exercisable for shares of common stock of the Company) or grant any options or warrants to purchase shares of common stock of the Company exercisable within the Lock-up Period, except for (A) sales to the Underwriters pursuant to this Agreement or (B) the grant of options in the ordinary course of business pursuant to the Gabelli Asset Management Inc. 1999 Stock Award and 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 Underwriters not to transfer such options (or shares of common stock underlying such options) for the remainder of such 180-day period).
(m) Except as stated in this Agreement and in the Preliminary Prospectus and 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 Class A Common Stock to facilitate the sale or resale of the Shares.
(n) The Company will use its best efforts to cause have the Shares Class A Common Stock listed, subject to be listed for trading notice of issuance, on The Nasdaq Capital Market at the time New York Stock Exchange concurrently with the effectiveness of the ClosingRegistration Statement.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with each of the Placement Agents as followsUnderwriters:
(ia) The To use its best efforts to cause the Registration Statement to become effective if, at the time this Agreement is executed, the Registration Statement has become effective, and if Rule 430A under not yet been declared effective by the Act is used or the filing of the Final Commission; to file such 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 the Placement Agents, pursuant to Rule 424(b) under the Act within not later than the prescribed time period close of business on the second business day following the execution and will provide a copy delivery of this Agreement, or if applicable, such filing to the Placement Agents promptly following such filing.
(ii) The Company will not, during such period earlier times as the Final Prospectus would may 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 (whether physically or through compliance with Rule 172 430A(a)(3) under the Act Act; to make no further amendment or any similar rule), file any amendment or supplement to the Registration Statement or Prospectus prior to the Final Prospectus unless a copy thereof Closing Date or the Option Closing Date, as the case may be, which shall first not previously have been submitted to the Placement Agents within you a reasonable period of time prior to the proposed filing thereof or which shall be disapproved by you promptly after reasonable notice by the Company of its proposed filing or which is not in compliance with the Act and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify Rules and Regulations; to advise you, promptly after it receives notice thereof, of the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) time when any post-effective amendment to the Registration Statement becomes effective; (2) of any request by the Commission for any amendments to the Registration Statement Statement, or any amendment thereto, has been filed or supplements becomes effective, or any supplement to the Final Prospectus or any Issuer Free Writing amended Prospectus or for additional informationhas been filed, and to furnish you copies thereof; (3) to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of any Preliminary Prospectus or Prospectus, 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; (4) 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 (5) 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 the initiation or threatening of any time proceeding for any such purpose, or any request by the Commission shall issue any order suspending for the effectiveness amending or supplementing of the Registration Statement Statement, or Prospectus or for additional information; and, in connection with the offering contemplated hereby event of the issuance of any stop order or in connection with sales of Common Stock pursuant any order preventing or -11- 12 suspending the use of any Preliminary Prospectus or Prospectus or suspending any such qualification, to market making activities by The Representative, the Company will make every reasonable effort use promptly its best efforts to obtain the withdrawal of any such order at the earliest possible moment. If time;
(b) Promptly from time to time to take such action as you reasonably may request to qualify the Company has omitted any information from the Registration Statement, pursuant to Rule 430A Shares for offering and sale under the Act, it will use its best efforts state securities or "Blue Sky" laws of such jurisdictions as you may request and to comply with such laws so as to permit the provisions continuance of sales and make all requisite filings with dealings therein in such jurisdictions for as long as may be necessary to complete the Commission pursuant distribution and for a period of not less than one year after the Effective Date, provided that in connection therewith the Company shall not be required to said Rule 430A and qualify as a foreign corporation or to notify the Placement Agents promptly file a general consent to service of all such filings.process in any jurisdiction in which it is not currently so subject;
(ivc) If, at any time when the Final Prospectus relating Promptly to the Shares is required furnish to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agentsyou, without charge, such number of two signed copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) one conformed copy of the Registration Statement as originally filed with the Commission and each any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, thereto (including any document filed under the Exchange Act and (b) so long as a prospectus relating to the Shares is required deemed to be delivered under incorporated by reference in the Act Registration Statement);
(whether physically or through compliance d) To furnish the Underwriters 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 in such quantities as each Underwriter may from time to time request. The Company consents to the Placement Agents use of the Prospectus or any amendment or supplement thereto by each Underwriter and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If the delivery of the Prospectus is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any event shall occur which in the judgment of the Company or counsel to the Company should be set forth in the Prospectus in order to make any statement therein, in light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company shall immediately prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each Underwriter, without charge, such number of copies thereof as may be reasonably requested. In case any Underwriter is required to deliver a prospectus in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter the Company will prepare and deliver to such Underwriter as many copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(e) To make generally available to its security holders a consolidated earnings statement of the Company covering a 12 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 and the Rules and Regulations (including Rule 158 of the Rules and Regulations);
(f) To furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report (including balance sheets and statements of earnings, shareholders' equity and cash flows of the Company and audited by independent certified 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
(g) During a period of five years from the Effective Date, to furnish to you copies of all reports or other communications (financial or other) furnished to shareholders of the Company, and deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission, the NASD or any national securities exchange on which any class of securities of the Company is listed (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally or to the Commission); and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request.;
(vih) The Company will To apply the net proceeds from the Offering in the manner set forth under the caption "Use of Proceeds" in the Prospectus;
(i) To comply with all the provisions of its undertakings contained in the Registration Statement.;
(viij) The Company will not make any offer relating to That the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) The Company will not at any time, directly or indirectly, take any action intendeddesigned, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the Shares shares of any of its securities to facilitate the sale or resale of any of the Shares;
(k) That the Company will cause the Common Stock, including the Shares, to be listed for quotation on the OTC Bulletin Board. The Company will use its reasonable best efforts to cause the Shares to be listed for trading on the American Stock Exchange or The Nasdaq Stock Market as soon as practicable after the Shares are eligible to be listed thereon. The Company will use its best efforts and take all actions reasonably necessary to cause the Common Stock to continue to be listed on the OTC Bulletin Board or, if the Company satisfies the criteria for listing the Shares thereon, on the American Stock Exchange or The Nasdaq Stock Market for at least five years after the date hereof.
(xiiil) The Company will notify promptly the Representative if That the Company ceases to be an Emerging Growth Company at any time prior to the later will, and will cause each of its directors, executive officers and beneficial owners (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied as determined pursuant to Rule 172 under the Act) and (b) completion 13d-3 of the Lock-Up Period.
(xivExchange Act Rules and Regulations) If at any time following of more than 2% of the distribution of any Written Testing-the-Waters CommunicationCommon Stock, 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 if any, to state any material fact necessary to make the statements therein enter into agreements with you substantially in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement form attached as Annex I hereto to the Representative in such quantities as may be reasonably requested.
(xv) The Company effect that they will not, directly or indirectlyfor a period of 180 days after the commencement of the offering of the Shares, without the your prior written consent of the Placement Agentsconsent, offer to sellfor sale, sell, contract to sell, grant any option or warrant to purchase, make any short salerights in, or otherwise dispose of (of, directly or announce any offer, sale, grant of any option or warrant to purchase or other disposition)indirectly, any shares of capital stock of the Company Common Stock (or any securities convertible intointo or exchangeable for any shares of Common Stock), or exchangeable or exercisable for, shares of capital stock of file a registration statement under the Company, (the “Lock-Up Securities”) for a period of 180 days after the date of this Agreement (the “Lock-Up Period”), except Act with respect to (i) the issuance of shares of Common Stock upon the exercise of any such stock options outstanding or rights to acquire such stock, except as of the date hereof, and (ii) the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described contemplated in the Final Prospectus.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company understands, covenants and agrees with the Placement Agents Agent as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will shall not, either prior to the Effective Date or thereafter during such period as the Final 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)dealer, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Agent within a reasonable period of time prior to the filing thereof and the Placement Agents Agent shall not have reasonably objected thereto in good faiththereto.
(iiib) The Company will shall use its best efforts to cause the Registration Statement to become effective, and shall notify the Placement Agents Agent promptly, and will, if requested, shall confirm such notification advice in writing, (1) when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement thereto becomes effective; , (2) 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 Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3) of the issuance any request by the Commission securities or other governmental authority (including, without limitation, the Commission) of any jurisdiction of any stop order preventing or suspending the effectiveness of the Registration Statement, the Final Prospectus or any Issuer Free Writing Prospectus, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (4) of becoming aware of the occurrence happening of any event during the period mentioned in Section 4(a) that in the reasonable 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; misleading and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 under the Act430A, 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 Placement Agents Agent promptly of all such filings.
(ivc) If, at any time when the Final a Prospectus relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, the Company becomes aware of the occurrence of any event occurs as a result of which the Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsAgent, 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 counsel to the Placement AgentsAgent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsAgent, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will shall promptly notify the Placement Agents and will Agent and, subject to Section 4(a) hereof, 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 Final Prospectus that corrects such statement or omission or effects such compliance and will shall deliver to the Placement AgentsAgent, without charge, such number of copies thereof as the Placement Agents Agent may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretoAgent.
(vd) The Company will shall furnish to the Placement Agents Agent and their its counsel, without charge charge, (ai) 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 (bii) so long as a prospectus relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Agent may reasonably request.
(vie) The Company will shall comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xf) Prior to the sale of the Shares Securities to the Investors, the Company will shall cooperate with the Placement Agents Agent and their 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 the Placement Agents Agent may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xig) The Company will use shall make generally available to holders of its best efforts to cause securities, as soon as may be practicable, but in no event later than the Shares to be listed for trading on The Nasdaq Capital Market at the time last day of the Closingfifteenth 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).
(xiih) The Company will shall 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.
(xiiii) The Company will notify promptly shall apply the Representative if net proceeds from the offering and sale of the Securities in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) The Placement Agent may not, 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, including any entity controlled by, or under common control with, the Company ceases to be an Emerging Growth Company at and any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Perioddirector, officer, employee or agent thereof.
(xivk) If Following the Closing, the Placement Agent shall have the right to place usual and customary advertisements in financial and other newspapers and journals, at any time following its own expense, describing its services to the distribution Company.
(l) The Company hereby agrees that for a period of any Written Testing-the-Waters Communication12 months from the Closing Date it shall not, any event occurs except for the granting of options under the Company's 2001 Employee Stock Option Plan and 2001 Directors Plan, 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 statements therein they may be amended in the light future, and the exercise of the circumstances under which they were made at such time not misleading, the Company will outstanding options and warrants (i) notify promptly the Representative so that use of the Written Testing-the-Waters Communication may cease until it is amended offer any Securities for sale to, or supplemented; (ii) amend solicit any offers to buy from, any person or supplement the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xv) The Company will notpersons, whether directly or indirectly, other than through the Placement Agent or (ii) engage in any discussions with any person other than representatives of the Placement Agent for the purpose of engaging, or considering the engagement of, such person as a finder or broker in connection with the sale by the Company of the Securities to potential investors in the United States of America or overseas, except that this subsection (l) shall not apply to an equity investment by a company ("Strategic Partner") engaged in the same business as the Company that is making an investment in the Company to complement its existing business.
(m) The Company hereby agrees that it shall not issue any equity securities for a period of 90 days from the Closing Date without the prior written consent of the Placement AgentsAgent, offer other than (i) securities issued pursuant 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 contractual obligations of the Company or securities convertible into, or exchangeable or exercisable for, shares in effect as of capital stock of the Company, (the “Lock-Up Securities”) for a period of 180 days after the date of this Agreement and disclosed to the Placement Agent or its counsel prior to the effective date of the Registration Statement; (ii) securities issued on a pro rata basis to all holders of a class of outstanding equity securities of the “Lock-Up Period”), except with respect Company; (iii) equity securities issued pursuant to (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding employee benefit or purchase plans in effect as of the date hereof, of this Agreement; and (iiiv) the issuance of shares of Common Stock or stock options under any benefit plan securities issued to Strategic Partners of the Company existing at a price which is equal to or exceeds the average market price of the Common Stock as traded on the date hereof, and described in American Stock Exchange for a reasonable period prior to the Final Prospectussale.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Samples: Placement Agency Agreement (Bentley Pharmaceuticals Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents Agent as follows:
(ia) 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 the Placement AgentsAgent, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents Agent promptly following such filing.
(iib) 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 Offered Securities by an underwriter or dealer in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)Agreement, file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents Agent within a reasonable period of time prior to the filing thereof and the Placement Agents Agent shall not have reasonably objected thereto in good faith.
(iiic) The Company will notify the Placement Agents Agent promptly, and will, if requested, confirm such notification in writing, : (1i) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (2ii) 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 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); (3iii) 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, but only during the period mentioned in Section 4(b); (4iv) 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (5v) 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 or in connection with sales of Common Stock pursuant to market making activities by The Representativehereby, 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 under the Act430A, 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 Placement Agents Agent promptly of all such filings.
(ivd) If, at any time when the Final a Prospectus relating to the Shares Offered Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, 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 counsel to the Placement AgentsAgent, 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 counsel to the Placement AgentsAgent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsAgent, at any time to amend or supplement the Final Prospectus Prospectus, the Pricing Disclosure Materials or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents and 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 Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement AgentsAgent, without charge, such number of copies thereof as the Placement Agents Agent may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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 theretoAgent.
(ve) The Company will furnish furnish, upon request, to the Placement Agents Agent and their its counsel, without charge charge: (ai) 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 (bii) so long as a prospectus relating to the Shares Offered Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents Agent may reasonably request.
(vif) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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.”
(xg) Prior to the sale of the Shares Offered Securities to the Investors, the Company will cooperate with the Placement Agents Agent and their 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 the Placement Agents Agent may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xih) 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.”
(k) The Company will use its best efforts to cause ensure that the Shares to be Offered Securities are listed for trading or quoted on The the Nasdaq Capital Market at the time of the Closing.
(xiil) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of any of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) 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 Final Prospectus relating to opinion of counsel for the Shares Underwriters a 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 Act Prospectus (whether physically and of any amendment or through compliance with Rule 172 under supplement to the Act Prospectus) and any documents incorporated therein by reference as such Underwriter or any similar ruledealer may reasonably request.
(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 Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To mail and make any offer relating generally available to its stockholders as soon as practicable an earnings statement covering the Shares twelve-month period ending June 30, 2000 that would constitute an Issuer Free Writing Prospectus without shall satisfy the prior written consent provisions of Section 11(a) of the Placement AgentsAct, and to advise you in writing when such statement has been so made available.
(viiih) The Company will retain in accordance 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 record holders of Common Stock or furnished to or filed with the Rules Commission or any national securities exchange on which any class of securities of the Company is listed and Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel, the Company's accountants and include any Selling Stockholder's counsel that the appropriate legends as required Company is obligated to pay by contract (in addition to the Rules Company's counsel) in connection with the registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto not to exceed $15,000), (v) the Placement Agents may reasonably request; providedfiling 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 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.
(xij) The Company will To use its best efforts to cause list the Shares to be listed for trading on The Nasdaq Capital Market at the time of the ClosingNYSE.
(xiik) 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 will not at on or prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsUnderwriter that:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, during such period as advise 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willUnderwriter promptly and, if requestedrequested by the Underwriter, will confirm such notification advice in writing, (1i) when any post-effective amendment to the Registration Statement is filed or becomes effective; , and of the filing of any final prospectus or supplement or amendment to the Prospectus, (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Preliminary Prospectus or for additional information; , (3iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, or the initiation or contemplation of any proceedings proceeding for that purpose or such purposes, and (iv) within the threat thereof; period of time referred to in paragraph (4f) of becoming aware 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 Final 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 Final 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 (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 elects not to rely on Rule 434, the Registration StatementCompany will provide the Underwriter with copies of the form of Prospectus in such numbers as the Underwriter may reasonably request and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the Act, pursuant to by the close of business in San Francisco on the business day immediately succeeding the date hereof.
(b) The Company will prepare and file with the Commission, in accordance with Rule 430A and Rule 424(b) under the Act, it will use its best efforts copies of an amended Prospectus, or, if required by Rule 430A, a post-effective amendment to comply with the provisions of and make Registration Statement (including an amended Prospectus) containing all requisite filings with the Commission pursuant to said Rule 430A and to notify the Placement Agents promptly of all such filingsinformation so omitted.
(ivc) IfThe Company will, at prior to the earlier of the Option Closing Date or termination or expiration of the related option, not incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated in the Prospectus.
(d) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not previously have been advised or to which the Underwriter shall promptly after being so advised reasonably object in writing.
(e) On the effective date of the Registration Statement and thereafter from time when to time during such period as in the Final Prospectus opinion of counsel for the Underwriter a prospectus relating to the Shares is required by law to be delivered under in connection with offers or sales of the Act (whether physically Shares by the Underwriter or through compliance with Rule 172 under the Act or any similar rule)a dealer, the Company becomes aware will deliver to the Underwriter and each dealer, without charge, as many copies of the occurrence Registration Statement and the Prospectus (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 Final Prospectus, as then amended or supplemented, would, in the reasonable judgment of the Company, or in the opinion of counsel for the Underwriter, should be set forth in the Prospectus in order to ensure that no part of the Company or counsel to the Placement Agents, 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 Underwriter, file with the Commission and deliver, without charge to the dealers (whose names and addresses will be furnished by the Underwriter to the Company) to whom shares have been sold by the Underwriter 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to will comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably requeststandards set forth in this sentence. The Company consents to the use of the Final such Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to in accordance with the Placement Agents and their counsel, without charge (a) one conformed copy provisions of the Registration Statement as originally filed Act and with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (b) so long as a prospectus relating to securities or Blue Sky laws of the jurisdictions described in the preliminary Blue Sky memorandum in which the Shares are lawfully offered by the Underwriter 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 is required by law to be delivered in connection therewith. In case the Underwriter is required to be delivered under the Act deliver a Prospectus (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 and any amendment or supplement thereto as thereto) more than nine months after the Placement Agents may reasonably first date upon which the Shares are offered to the public, the Company will, upon request, but at the expense of the Underwriter, promptly prepare and furnish the Underwriter with reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Act.
(vif) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents Underwriter and their counsel for the Underwriter in connection with the registration or qualification of the Shares for offer and sale by the Underwriter and by dealers under the state securities or Blue Sky laws of such jurisdictions as the Placement Agents Underwriter may designate, will continue such registrations or qualifications in effect so long as reasonably requestrequired 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 to (i) qualify to do business in any jurisdiction where it is not now so qualified qualified, (ii) 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.
(xig) For a period of five years after the date hereof:
(i) the Company will furnish to the Underwriter (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 periodic 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 Underwriter may reasonably request;
(ii) if at any time during such five-year period the Company shall cease filing with the Commission the periodic reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (h)(i) above, the Company will forward to its shareholders generally and the Underwriter (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 Underwriter 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).
(h) The Company will use make generally available to its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time security holders an earnings statement of the ClosingCompany, which need not be audited, covering a 12-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 promulgated thereunder (including Rule 158).
(xiii) If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than by notice given by the Underwriter's termination of this Agreement pursuant to Section 9 hereof), or if this Agreement shall be terminated by the Underwriter because of any failure or refusal on the part of the Company to comply with the material terms or fulfill any of the material conditions of this Agreement, the Company agrees to reimburse the Underwriter for all out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriter) reasonably incurred by them in connection herewith but without any further obligation of the Company for lost profits or otherwise.
(j) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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, sell or otherwise dispose of (any Common Stock or announce any offer, sale, grant of any option or warrant rights to purchase or other disposition), any shares of capital stock of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company, (the “Lock-Up Securities”) Common Stock for a period of 180 days after the date of this Agreement the Prospectus without the prior written consent of the Underwriter (the “Lock-Up Period”), except with respect to (i) other than the issuance of shares of Common Stock upon pursuant to the exercise of Company's stock options outstanding as of the date hereof, option plan(s) and (ii) the issuance of shares of Common Stock or stock options under any certain other employment benefit plan arrangements of the Company existing on in an aggregate amount not to exceed 5% of the date hereof, Shares). The Company will also obtain similar agreements from each of its executive officers and described in directors and all persons who own at least 5% of the Final ProspectusCommon Stock after the consummation of the Offering.
(xvik) The Company agrees that if will apply the Representative agrees to waive or release any officer or director net proceeds from the sale of the Company from Shares to be sold by it under this Agreement and the lock-up restrictions Pricing Agreement for the purposes set forth in the letter agreements delivered pursuant to Section 7(xiii), Prospectus under the Company will announce the impending release or waiver by press release through a major news services at least two business days before the effective date caption "Use of such release or waiverProceeds."
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(ia) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto 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 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 if 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 (including the prospectus subject to completion, if any, included in the Registration Statement or any amendment thereto at the time it was or is used or declared effective); the filing of term "Prospectus" means: (A) if the Final Prospectus Company relies on Rule 434 under the Act, the Term Sheet relating to the Shares that is otherwise required under first filed pursuant to Rule 424(b424(b)(7) under the Act, together with the Prepricing Prospectus identified therein that such Term Sheet supplements; (b) if the Company will file the Final Prospectus (properly completed if does not rely on Rule 430A 434 under the Act has been used)Act, subject to the prior approval of prospectus first filed with the Placement Agents, Commission pursuant to Rule 424(b) under the Act within Act; or (c) if the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with does not rely on Rule 172 434 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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) 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; (3) 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; (4) 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 (5) 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a no prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.is
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) a. The Company will notify the Placement Agents promptlyUnderwriters immediately, and will, if requested, confirm such notification the notice in writing, (1i) when any post-effective amendment to of the effectiveness of the Registration Statement becomes effective; and any amendment thereto, (2ii) 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 Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3iv) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or the Final Prospectus suspension of qualification of the Securities for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company 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 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 430A 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel to the Placement Agents, include any untrue statement of a material fact or omit 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 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 counsel 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 not misleading, or if for any other reason it is necessary, in of the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessity to amend or supplement the Final Prospectus or the Registration Statement to comply with the 1933 Act or any other law. The Company shall use its best efforts to prevent the Rules and Regulationsissuance of any stop order or order suspending the qualification or exemption of the Securities under any 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, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws, the Company will promptly notify shall use every reasonable effort to obtain the Placement Agents and will promptly prepare and file with the Commission, withdrawal or lifting of such order at the Company’s expense, an earliest possible time.
b. The Company will give the Underwriters notice of its intention to prepare or file any 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or (including any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rulepost-effective amendment), as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request.
(viRule 462(b) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, any event occurs as a result of which such Written Testing-the-Waters Communication would include any untrue statement of a material fact Term Sheet or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative Prospectus (including any revised prospectus or Term Sheet and preliminary prospectus which the Company proposes for use by the Underwriters in such quantities as may be reasonably requested.
(xv) The Company will not, directly or indirectly, without connection with the prior written consent offering 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 of the 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 of 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 officer or director of the Company Securities which differs from the lock-up restrictions in prospectus on file at the letter agreements delivered Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus or Term Sheet and preliminary prospectus is required to be filed pursuant to Section 7(xiii), the Company 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 release or waiver.Rule
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Underwriters as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will not, during such period as the Final 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule)dealer, file any amendment or supplement to the Registration Statement or the Final Prospectus Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents Underwriters within a reasonable period of time prior to the filing thereof and the Placement Agents Underwriters shall not have reasonably objected thereto in good faith.
(iiib) The Company will notify the Placement Agents Underwriters promptly, and will, if requested, will confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; , (2) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3) 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, Statement or the initiation of any proceedings for that purpose or the threat thereof; , (4) of becoming aware of the occurrence happening of any event during the period referred to 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 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; misleading and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 Underwriters, without charge, signed 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), and will furnish to the Underwriters, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any post- effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company has omitted will comply with all the provisions of any information from undertakings contained in the Registration Statement, pursuant to Rule 430A 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 Placement Agents promptly of all such filings.
(ive) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any From time to amend or supplement time after the Final Prospectus or the Registration Statement to comply with the Act or the Rules execution and Regulationsdelivery of this Agreement, the Company will promptly notify 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 each of the Placement AgentsUnderwriters, without charge, such number as many copies of copies thereof the Prospectus or any amendment or supplement thereto as the Placement Agents Underwriters may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement Agentsseveral 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 would require the Prospectus to be amended or supplemented 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 the Placement Agents agree to provide will deliver to each Investorof the Underwriters, prior without charge, such number of copies thereof as the Underwriters may reasonably request. The Company will inform you of its intention to file any amendment to the ClosingRegistration Statement, any supplement to the Prospectus or any document that would as a copy result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such amendment, supplement or other document a reasonable time in advance of filing; and will not file any such amendment, supplement or other document in a form to which you or your counsel shall reasonably object; except that the Company shall inform you of its intention to file documents pursuant to Section 14(d) of the Final Prospectus 1934 Act and any amendments shall furnish you with copies of such documents immediately upon the filing thereof, but you or supplements your counsel shall not be entitled to object thereto.
(vf) The Company will furnish Prior to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) The Company will apply the net proceeds from the public offering and sale of the Shares in by the manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
(x) Prior to the sale of the Shares to the InvestorsUnderwriters, the Company will cooperate with the Placement Agents Underwriters and their 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 the Placement Agents Underwriters may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business or as a dealer in securities 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 or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(xig) During the period of five years commencing on the Effective Date, the Company will furnish to the Underwriters 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 Underwriters 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 use make generally available to holders of its best efforts to cause securities as soon as may be practicable but in no event later than the Shares to be listed for trading on The Nasdaq Capital Market at the time last day of the Closingfifteenth 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).
(xiii) 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 (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 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 any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (5) 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, (6) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f), including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (7) the preparation and filing of the Designation, (8) counsel to the Company, (9) the transfer agent for the Shares and (10) the Accountants and Xxxxx Xxxxx.
(j) If this Agreement shall be terminated by the Company pursuant to any of the provisions hereof (otherwise than pursuant to Section 8) or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will reimburse the several Underwriters for all out- of-pocket expenses (including the fees, disbursements and other charges of counsel to the Underwriters) reasonably incurred by them in connection herewith.
(k) 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.
(xiiil) The Company will notify promptly apply the Representative if net proceeds from the offering and sale of the Shares to be sold by the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described manner set forth in the Final ProspectusProspectus under "Use of Proceeds.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver."
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several Managers as follows:
(ia) 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 under or a post-effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject endeavor to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) 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 Final Prospectus or any Issuer Free Writing Prospectus Prospectuses or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 under the Act, 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 Placement Agents promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request.
(ivd) If, at The Company will not (i) file any time when the Final 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 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 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 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.
(whether physically or through compliance with Rule 172 under 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 similar rule)Manager or dealer, the Company becomes aware will expeditiously deliver to each Manager and each dealer, without charge, as many copies of the occurrence 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 Final 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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final International Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents and will promptly prepare and provisions of paragraph (d) above, 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 Final Prospectus that corrects such statement or omission or effects such compliance Managers and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as Lead Managers for the Placement Agents may reasonably request. The Company consents several Managers, agree that the International Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the use of the Final Prospectus or any proposed amendment or supplement thereto by the Placement 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 theretosupplement.
(vg) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and with counsel for the Placement Agents and their counsel 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 the Placement Agents you may reasonably requestdesignate, and 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.
(xih) The Company will make generally available to its securityholders 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 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 required -------- to provide to you any such information that is not available to the public.
(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 cause have the Common Shares listed on the Nasdaq National Market concurrently with the effectiveness of the registration statement and to maintain such listing and the registration of the Shares to be listed for trading on The Nasdaq Capital Market at under the time of the ClosingExchange Act.
(xiip) The Company hereby validly and irrevocably submits to the jurisdiction of any federal or state court sitting in The City of New York and irrevocably waive, to 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 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 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 Managers' obligations to facilitate the sale or resale of any of purchase the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Samples: International Underwriting Agreement (Lasalle Re Holdings LTD)
Agreements of the Company. The Company covenants and agrees with the Placement Agents you as follows:
(i) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(iia) The Company will notnotify you promptly, and (if requested by you in writing) will confirm such advice in writing, during such the 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 distribution of the offering contemplated by this Agreement Offered Securities (whether physically or through compliance with Rule 172 under 1) of the Act or any similar rule), file effectiveness of any amendment or to the Registration Statement and of the filing of any supplement to the Prospectus, (2) of any comments of the Commission regarding the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to (or any of the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iiidocuments incorporated by reference therein) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2) or of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3) 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, Statement or the initiation or threatening of any proceedings for that purpose or the threat thereof; purpose, (4) of becoming aware the receipt by the Company of any notification with respect to the suspension of the occurrence qualification of the Offered Securities [or the Common Shares] for offer or sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose and (5) of the happening of any event that during the period mentioned in the judgment of the Company paragraph (d) below which makes any statement of a material fact made in the Registration Statement or the Final Prospectus (as theretofore amended or supplemented) untrue in any material respect or that which requires the making of any changes in the Registration Statement or the Final Prospectus (as theretofore amended or supplemented) 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; and (5) . The Company will use its reasonable best efforts to prevent the issuance 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 or suspending the qualification of the Offered Securities [or the Common Shares] for offer or sale in connection with the offering contemplated hereby or in connection with sales of Common Stock pursuant to market making activities by The Representativeany jurisdiction, and if any such order is issued, 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 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 Placement Agents promptly of all such filings.
(iv) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement 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.
(vb) The Company will furnish to the Placement Agents and their counseleach of you, without charge (a) charge, one conformed copy of the Registration Statement as originally and any post-effective amendment thereto filed in connection with the Commission and each amendment theretooffering of the Offered Securities, including all financial statements and schedules, exhibits and all documents incorporated therein by reference (including exhibits theretoincorporated therein by reference to the extent not previously furnished to you).
(c) The Company will give you advance notice of its intention to file any amendment or supplement to the Registration Statement or the Prospectus with respect to the Offered Securities, and will not file any such amendment or supplement to which you shall reasonably object in writing.
(bd) so long as a prospectus relating to During the Shares period of time that the Prospectus is required by law to be delivered under delivered, the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Company will deliver to each Underwriter, without charge, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto as the Placement Agents such Underwriter may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents and 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 the Placement Agents may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xi) The Company will use its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time of the Closing.
(xii) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.reasonably
Appears in 1 contract
Samples: Underwriting Agreement (Tele Communications Inc /Co/)
Agreements of the Company. The Company covenants and agrees with the Placement Agents several -------------------------- Underwriters as follows:
(ia) The If, at the time this the Registration Statement has become effective, and if Rule 430A under or a post- effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject endeavor to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to cause the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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 becomes or such post-effective amendment has become effective; .
(2b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for any amendments amendment of or a supplement to the Registration Statement or Statement, any amendment or supplements to the Final Prepricing Prospectus or any Issuer Free Writing the Prospectus or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 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 request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (iv) three copies of the exhibits to the Incorporated Documents.
(d) 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 omitted any information from delivered to you, without charge, in such quantities as you have requested, copies of each form of the Registration StatementPrepricing Prospectus. The Company consents to the use, pursuant to Rule 430A under the Act, 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 Placement Agents promptly date of all such filingsthe Prospectus, of each Prepricing Prospectus so furnished by the Company.
(ivf) 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 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 Prospectus (and of any time when the Final Prospectus relating 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 Act Prospectus (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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents and will promptly prepare and provisions of paragraph (d) above, file with the CommissionCommission an appropriate supplement or amendment thereto, at the Company’s expense, an amendment and will expeditiously furnish to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance Underwriters and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as the Placement Agents may reasonably request. The Company consents to the use Representatives of the Final several Underwriters, agree that the Prospectus should be amended or any supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement thereto by the Placement 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 theretosupplement.
(vg) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and with counsel for the Placement Agents and their 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 the Placement Agents you may reasonably requestdesignate 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.
(xih) The Company will use make generally available to its best efforts to cause security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the Shares to be listed for trading on The Nasdaq Capital Market at the time effective date of the ClosingRegistration 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.
(xiii) 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 sale of the Shares substantially in accordance with the description set forth in the Prospectus.
(l) 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.
(m) The Company will not at sell, contract to sell or otherwise dispose of any time, directly Common Stock or indirectly, take any action intendedsecurities convertible into or exercisable or exchangeable for Common Stock, or which might reasonably be expectedgrant any options or warrants to purchase Common Stock, to cause or result in, or which will constitute, stabilization for a period of 90 days after the date of the price of the Shares to facilitate the sale or resale of any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xv) The Company will not, directly or indirectlyProspectus, without the prior written consent of Xxxxx Xxxxxx Inc. except as provided in this Agreement, pursuant to the Placement AgentsCompany's Stock Purchase Plan, offer to sell, sell, contract to sell, grant any option Stock Options Plans 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 in connection with other disposition), any shares of capital stock of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock incentive compensation arrangements with employees 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents several U.S. Underwriters as follows:
(i) 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 under or a post-effective amendment thereto to be declared effective before the Act is used or the filing offering of the Final Prospectus is otherwise required under Rule 424(b) under the ActShares may commence, the Company will file endeavor to cause the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject Registration Statement or such post-effective amendment to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act 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 advice in writing, when the Placement Agents promptly following Registration Statement or such filingpost-effective amendment has become effective.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willadvise you promptly and, if requestedrequested by you, will confirm such notification advice in writing, : (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) 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 Final Prospectus or any Issuer Free Writing Prospectus Prospectuses or for additional information; (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus, 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; (4) 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 Final 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 Final 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 (5as 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 under the Act, 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 Placement Agents promptly Registration Statement as originally filed and of all such filingseach amendment thereto, but without exhibits, as you may reasonably request.
(iv) If, at The Company will not (i) file any time when the Final 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 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 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 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.
(whether physically or through compliance with Rule 172 under 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 similar rule)U.S. Underwriter or dealer, the Company becomes aware will expeditiously deliver to each U.S. Underwriter and each dealer, without charge, as many copies of the occurrence 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 Final 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 counsel to the Placement Agents, 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 counsel to the Placement Agents, 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final U.S. Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsany other law, the Company will promptly notify forthwith prepare and, subject to the Placement Agents and will promptly prepare and provisions of paragraph (d) above, 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 Final Prospectus that corrects such statement or omission or effects such compliance U.S. Underwriters and will deliver to the Placement Agents, without charge, such dealers a reasonable number of copies thereof as thereof. In the Placement Agents may reasonably request. The event that the Company consents and you agree that the U.S. Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the use of the Final Prospectus or any proposed amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statementsupplement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 you and with counsel for the Placement Agents and their 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 the Placement Agents you may reasonably requestdesignate, and 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.
(viii) The Company will make generally available to its securityholders 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.
(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 terms or fulfill, in any material respect, any of the 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 Act and will advise you of the time and manner of such filing.
(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 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.
(xiii) 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 cause have the Common Shares to be listed for trading on The the Nasdaq Capital National Market at concurrently with the time effectiveness of the Closing.
(xii) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, registration statement and to cause or result in, or which will constitute, stabilization of maintain such listing and the price registration of the Shares to facilitate the sale or resale of any of the Shares.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Exchange Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 hereby validly and irrevocably submits to the jurisdiction of any federal or state court sitting in The City of New York and irrevocably waive, to the fullest extent permitted by law, any objection that if either of them may now or hereafter have to the Representative agrees to waive laying of venue of any such suit, action or release proceeding brought in any officer such court based on or director of the Company from the lock-up restrictions arising under this Agreement and any claim that any such suit, action or proceeding brought in the letter agreements delivered pursuant to Section 7(xiii), the any such court has been brought in an inconvenient forum.
(xvii) The Company will announce the impending release use all reasonable commercial efforts to satisfy on or waiver by press release through a major news services at least two business days before the effective date of such release or waiverClosing Date all conditions contained in Section 10 hereof to the U.S. Underwriters' obligations to purchase the Shares.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Lasalle Re Holdings LTD)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsseveral Underwriters that:
(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) The when the Registration Statement has become effective, 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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, (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Preliminary Prospectus or for additional information; , (3iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, or the initiation or contemplation of any proceedings proceeding for that purpose or such purposes, and (iv) within the threat thereof; period of time referred to in paragraph (4f) of becoming aware 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 Final 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 Final 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 (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 the Registration Statement, pursuant to shall have been omitted therefrom in reliance upon Rule 430A under the Act, it then promptly following the execution of the Pricing Agreement, the Company will use 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) Neither the Company nor any of its best efforts subsidiaries will, prior to comply the earlier of the Option Closing Date or termination or expiration of the related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated in the Prospectus.
(d) The 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, 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 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 Placement Agents promptly effective date of all such filingsthe Registration Statement, of each Preliminary Prospectus so furnished by the Company.
(ivf) If, at any On the effective date of the Registration Statement and thereafter from time when to time during such period as in the Final Prospectus opinion of counsel for the Underwriters a prospectus relating to the Shares is required by law to be delivered under in connection with offers or sales of the Act (whether physically Shares by an Underwriter or through compliance with Rule 172 under the Act or any similar rule)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 Final 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 counsel to the Placement Agents, 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 counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to will comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably requeststandards set forth in this sentence. The Company consents to the use of the Final such Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to in accordance with the Placement Agents and their counsel, without charge (a) one conformed copy provisions of the Registration Statement as originally filed Act and with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (b) so long as a prospectus relating to 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 is required by law to be delivered in connection therewith. In case any Underwriter is required to be delivered under the Act deliver a Prospectus (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 and any amendment or supplement thereto as thereto) more than nine months after the Placement Agents may reasonably first date upon which the Shares are offered to the public, the Company will, upon request, but at the expense of such Underwriter, promptly prepare and furnish such Underwriter with reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Act.
(vig) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) 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 the Placement Agents Representatives and their 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 the Placement Agents Representatives may designate, will continue such registrations or qualifications in effect so long as reasonably requestrequired 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.
(xih) 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 use make generally available to its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time security holders an earnings statement of the ClosingCompany, 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).
(xiij) 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 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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, sell or otherwise dispose of (any Common Stock or announce any offer, sale, grant of any option or warrant rights to purchase or other disposition), any shares of capital stock of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company, (the “Lock-Up Securities”) Common Stock for a period of 180 days after the date of this the Pricing Agreement (without the “Lock-Up Period”), except with respect to (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding as prior written consent of the date hereof, Representatives. The Company will also obtain similar agreements from each of its executive officers and (ii) the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectusdirectors.
(xvil) The Company agrees that if will apply the Representative agrees to waive or release any officer or director net proceeds from the sale of the Company from shares to be sold by it under this Agreement and the lock-up restrictions Pricing Agreement for the purposes set forth in the letter agreements delivered pursuant to Section 7(xiii), Prospectus under the caption "Use of Proceeds."
(m) The Company will announce use its best efforts, subject to notice of issuance, to cause the impending release or waiver by press release through a major news services at least two business days before Shares to be approved for quotation on the effective date of such release or waiverNASDAQ Stock Market.
Appears in 1 contract
Samples: Underwriting Agreement (Comtech Telecommunications Corp /De/)
Agreements of the Company. The Company covenants and agrees with the Placement Agents several ------------------------- Underwriters as follows:
(a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriters promptly, and if requested by the Underwriters will confirm such advice in writing, (i) The when the Registration Statement has become effective, 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested, confirm such notification in writing, (1) 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, (2ii) of any request by the Commission for any amendments or supplements to the Registration Statement or any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; Prospectus, (3iii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Notes for offering or sale in any Issuer Free Writing Prospectusjurisdiction, or the initiation or contemplation known to the Company of any proceedings proceeding for that purpose or such purposes, and (iv) within the threat thereof; period of time referred to in paragraph (4f) of becoming aware 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 Final Prospectus untrue in any material respect or that which requires the making of any additions to or changes in the Registration Statement or the Final 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 (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 the Registration Statement, pursuant to shall have been omitted therefrom in reliance upon Rule 430A under the Act, it then following the execution of the Pricing Agreement, the Company will use its best efforts 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 comply 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, each amendment thereto and documents incorporated therein by references each Underwriter may reasonably request.
(d) The Company will not file any amendment to the 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 make all requisite filings with the Commission pursuant to said Rule 430A securities or Blue Sky laws of the jurisdictions in which the Notes are lawfully offered by the several Underwriters and to notify the Placement Agents promptly of by all such filingsdealers.
(ivf) If, at any On the effective date of the Registration Statement and thereafter from time when to time during such period as in the Final Prospectus relating to opinion of counsel for the Shares Underwriters a prospectus is required by law to be delivered under in connection with offers or sales of the Act (whether physically Notes by an Underwriter or through compliance with Rule 172 under the Act or any similar rule)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 Final 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 counsel and the Underwriters after discussions among such counsel, should be set forth in the Prospectus in order to ensure that the Placement Agents, include any Prospectus does not contain 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 Underwriters, file with the Commission and deliver, without charge to the Underwriters 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 the Registration Statementto other dealers upon request, an amendment or supplement, as then 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, would, in the reasonable judgment of counsel to the Company or counsel 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to will comply with the Act or the Rules and Regulations, the Company will promptly notify 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 Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably requeststandards set forth in this sentence. The Company consents to the use of the Final such Prospectus or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules provisions of the Act and Regulations with the securities or Blue Sky laws of the jurisdictions in which the Notes are lawfully offered by the Underwriters and by all Issuer Free Writing Prospectuses not dealers to whom Notes may be sold, both in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. In case any Underwriter is required to be fileddeliver a Prospectus more than nine months after the first date upon which the Notes are offered to the public, and timely file and include the appropriate legends as required by Company will, upon request but at the Rules and Regulations. The Company represents that it has satisfied and agrees that it will satisfy expense of such Underwriter, furnish such Underwriter with reasonable quantities of a Prospectus complying with Section 10(a)(3) of the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road showAct.
(ixg) 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 the Placement Agents Underwriters and their 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 the Placement Agents Underwriters may reasonably requestdesignate 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.
(xih) The Company will use make generally available to its best efforts to cause the Shares to be listed for trading on The Nasdaq Capital Market at the time security holders an earnings statement of the ClosingCompany 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).
(xiii) 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 not at any time, directly or indirectly, take any action intendedpay, or which might reasonably be expectedreimburse 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 cause or result inthe performance by it of its obligations under this Agreement and the Pricing Agreement, or which will constituteincluding, stabilization without limiting the generality of the price foregoing, (i) the fees and expenses of the Shares 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 facilitate completion, the sale 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 resale 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 Sharesprovisions 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.
(xiiim) The Company will notify promptly apply the Representative if net proceeds from the Company ceases sale of the Notes to be an Emerging Growth Company at any time prior to sold by it under this Agreement and the later of (a) completion of Pricing Agreement for the period when a prospectus relating to purposes set forth in the Shares is required to be delivered Prospectus under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion caption "Use of the Lock-Up PeriodProceeds."
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xvn) The Company will notcomply with all registration, directly or indirectly, without the prior written consent filing and reporting requirements of the Placement Agents, offer Exchange Act which may from time to sell, sell, contract time be applicable 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 of the 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 of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectus.
(xvio) The Company agrees that if the Representative agrees to waive or release any officer or director will comply with all provisions of the Company from the lock-up restrictions all undertakings contained in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiverRegistration Statement.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the Placement Agents as followsyou:
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 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 430A 424(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 Placement Agents become promptly of all such filingseffective.
(ivd) IfPrior to 10:00 A.M., at any New York City time when or as soon as practicable thereafter, on the Final Prospectus relating first business day after the date of this Agreement and from time to time thereafter for such period as in the Shares opinion of counsel for the Underwriters a prospectus is required by law to be delivered under the Act (whether physically in connection with sales by an Underwriter or through compliance with Rule 172 under the Act or a dealer, to furnish in New York City to each Underwriter and any similar rule), the Company becomes aware 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) above, any event shall occur or condition shall exist as a result of which the Final 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 counsel to the Placement Agents, 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 the Registration Statement, as then amended or supplemented, wouldif, in the reasonable judgment opinion of counsel to for the Company or counsel to the Placement AgentsUnderwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time necessary to amend or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Rules and Regulationsapplicable law, the Company will promptly notify the Placement Agents and will promptly forthwith to 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 Final 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 the Placement Agents, without charge, such number of furnish to each Underwriter and to any dealer as many copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus such Underwriter or any amendment or supplement thereto by the Placement 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.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vif) 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.
(viig) The Company will not To make any offer relating generally available to its stockholders as soon as practicable an earnings statement covering the Shares twelve-month period ending September 30, 2001 that would constitute an Issuer Free Writing Prospectus without shall satisfy the prior written consent provisions of Section 11(a) of the Placement AgentsAct, and to advise you in writing when such statement has been so made available.
(viiih) The Company will retain in accordance During the period of three years after the date of this Agreement, to furnish to you as soon as practicable copies of all reports or other publicly available communications furnished to the record holders of Common Stock or furnished to or filed with the Rules Commission or any national securities exchange on which any class of securities of the Company is listed and Regulations all Issuer Free Writing Prospectuses such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not required the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be filedpaid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and timely file expenses of the Company's counsel, the Company's accountants and include Selling Stockholder's counsel (in addition to the appropriate legends as required by Company's counsel) in connection with the Rules registration and Regulations. The Company represents that it has satisfied and agrees that it will satisfy delivery of the conditions in Rule 433 Shares under the Act to avoid a requirement to file and all other fees and expenses in connection with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering preparation, printing, filing and sale distribution of the Shares 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate 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 Placement Agents and their 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling fees and reasonable 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 and the Selling Stockholder 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 Stockholder may otherwise have for allocation of process in any jurisdiction where it is not now so subjectsuch expenses among themselves.
(xij) The Company will To use its best efforts to cause list for quotation the Shares on the Nasdaq National Market and to be listed for trading on The Nasdaq Capital Market at maintain the time listing of the ClosingShares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(xiik) The To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company will not at prior to the Closing Date or any timeOption Closing Date, directly or indirectlyas the case may be, take any action intended, or which might reasonably be expected, and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under the Act (including not so covered in circumstances where such requirement may be satisfied pursuant to compliance with Rule 172 under the Act462(b) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communicationby 10:00 P.M., 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 statements therein in the light of the circumstances under which they were made at such time not misleadingNew York City time, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 on the date of this Agreement (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (iifiling thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final ProspectusAct.
(xvim) The Company agrees that if That in connection with the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii)Directed Share Program, the Company will announce ensure that the impending release Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, Inc. (the "NASD") or waiver by press release through the NASD rules from sale, transfer, assignment, pledge or hypothecation for a major news services at least two business days before period of three months following the effective 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 will direct the removal of such release 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 and stamp duties, similar taxes or waiverduties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
Appears in 1 contract
Samples: Underwriting Agreement (Viasource Communications Inc)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as follows:you: -------------------------
(ia) 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 the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents To advise you promptly following such filing.
(ii) 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 Agreement (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 the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and willand, if requestedrequested by you, to confirm such notification advice in writing, (1) when any post-effective amendment to the Registration Statement becomes effective; (2i) of any request by the Commission for any amendments to the Registration Statement or any amendment amendments or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information; , (3ii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or of the Final Prospectus suspension of qualification of the Shares for offering or sale in any Issuer Free Writing Prospectusjurisdiction, 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, (4iv) if the Company files 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 becoming aware 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 Final 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 Final Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (5) 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The RepresentativeStatement, 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 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 reasonably satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 430A 424(b) under the Act, it will use its best efforts to comply with ; during the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Placement Agents promptly of all such filings.
(ivperiod specified in Section 5(d) If, at any time when the Final Prospectus relating to the Shares is required to be delivered under the Act (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 counsel 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 madebelow, not misleading, or the Registration Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel file any further amendment 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 not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement and not to comply with make any amendment or supplement to the Act Prospectus of which you shall not previously have been advised or the Rules and Regulationsto which you shall reasonably object after being so advised; and, the Company will promptly notify the Placement Agents and will promptly during such period, to 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 Final 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 Placement AgentsRegistration Statement to become promptly effective.
(d) Prior to 10:00 A.M., without chargeNew York City time, on the first business day after the date of this Agreement and from time to time thereafter for such number 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 thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or (and of any amendment or supplement thereto by the Placement Agents, and the Placement Agents agree to provide to each Investor, prior to the Closing, a copy of the Final Prospectus Pro- spectus) and any amendments documents incorporated therein by reference as such Underwriter or supplements thereto.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) 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 (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents dealer may reasonably request.
(vie) The If during the 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 will 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 all the undertakings contained in the Registration Statement.
(vii) The Company will not make any offer relating applicable law, forthwith to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules prepare and Regulations all Issuer Free Writing Prospectuses not required to be 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 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 electronic road showdealer as many copies thereof as such Underwriter or dealer may reasonably request.
(ixf) 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 apply 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 net proceeds from Prospectus, the Registration Statement, any preliminary prospectus or the offering and or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as reasonably practicable an earnings statement covering the twelve-month period ending March 31, 2000 that shall satisfy the provisions of Sec-
(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 as soon as reasonably practicable after they become 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.
(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 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 manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
quantities specified herein, (xii) Prior all costs and expenses related to the sale transfer and delivery of the Shares to the InvestorsUnderwriters, the Company will cooperate including any transfer or other taxes payable thereon, (iii) all costs of word processing or producing this Agreement and any other agreements or documents in connection with the Placement Agents and their counsel offering, purchase, sale or delivery of the Shares, (iv) 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 registration or qualification and memoranda relating thereto), (v) the Placement Agents may reasonably request; providedfiling 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 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 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 otherwise affect any agreement that the Company and the Selling Stockholders may otherwise have for allocation of such expenses among themselves. Except as expressly provided in this paragraph (i), the Underwriters agree to take any action which would subject it to general service pay all of process in any jurisdiction where it is not now so subjecttheir costs and expenses, including fees and disbursements of their counsel.
(xij) 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 cause the Shares do and perform all things required or necessary to be listed for trading on The Nasdaq Capital Market at done and performed under this Agreement by the time of Company prior to the Closing.
(xii) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, Closing Date and to cause or result in, or which will constitute, stabilization of satisfy all conditions precedent to the price of the Shares to facilitate the sale or resale of any delivery of the Shares.
(xiiil) The Company will notify promptly If the Representative if Registration Statement at the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when effectiveness of this Agreement does not cover all of the Shares, to file a prospectus relating to Rule 462(b) Registration Statement with the Commission registering the Shares is required to be delivered under not so covered in compliance with Rule 462(b) by 11:00 A.M., New York City time, on the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time first business day following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 (and to pay to the “Lock-Up Period”), except with respect to (iCommission the filing fee for such Rule 462(b) Registration Statement at the issuance of shares of Common Stock upon the exercise of stock options outstanding as time of the date hereof, and (ii) filing thereof or to give irrevocable instructions for the issuance payment of shares of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered such fee pursuant to Section 7(xiii), Rule 111(b) under the Company 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 release or waiverAct.
Appears in 1 contract
Samples: Underwriting Agreement (Amerisource Distribution Corp)
Agreements of the Company. The Company covenants and agrees with the Placement Agents as follows:
(ia) 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)Supplement, subject to the prior approval of the Placement AgentsSelling Agent, pursuant to Rule 424(b) the Rules and Regulations under the Act Act, within the prescribed time period and will provide a copy of such filing to the Placement Agents Selling Agent promptly following such filing.
(iib) The Company will not, during such period as the Final 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 Agreement (whether physically or through compliance with Rule 172 the Rules and Regulations under the Act or any similar ruleAct), file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted Supplement, in each case related to the Placement Agents within a reasonable period Offering, without the consent of time prior the Selling Agent, such consent not to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.be unreasonably withheld or subject to undue delay..
(iiic) The Company will notify the Placement Agents Selling Agent promptly, and will, if requested, confirm such notification in writing, : (1) when any post-effective amendment to the Registration Statement becomes effectiveis filed; (2) 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 Supplement or for additional information; (3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement, Statement or the Final Prospectus or any Issuer Free Writing ProspectusSupplement, or the initiation of any proceedings for that purpose or the threat thereof; (4) 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 Final 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 Final Prospectus Supplement in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company 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 hereby or in connection with sales of Common Stock pursuant to market making activities by The Representativethe 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 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 the Act and the Rules and Regulations and to notify the Placement Agents Selling Agent promptly of all such filings.
(ivd) If, at any time when the Final Prospectus Supplement relating to the Shares Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule)Act, the Company becomes aware of the occurrence of any event as a result of which the Final ProspectusProspectus Supplement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsSelling 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 counsel to the Placement AgentsSelling Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement AgentsSelling Agent, at any time to amend or supplement the Final Prospectus Supplement or the Registration Statement to comply with the Act or the Rules and Regulations, the Company will promptly notify the Placement Agents 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 Final Prospectus Supplement that corrects such statement or and/or omission or effects such compliance and will deliver to the Placement AgentsSelling Agent, without charge, such number of copies thereof as the Placement Agents Selling Agent may reasonably request. The Company consents to the use of the Final Prospectus Supplement or any amendment or supplement thereto by the Placement AgentsSelling Agent, and the Placement Agents agree Selling Agent agrees to provide to each Investor, prior to the Closing and, as applicable, any Subsequent Closing, a copy of the Final Prospectus Supplement and any amendments or supplements thereto.
(ve) The Company will furnish has not distributed and, prior to the Placement Agents and their counsel, without charge (a) one conformed copy later to occur of the Registration Statement as originally filed with last Closing Date and completion of the Commission and each amendment theretodistribution of the Securities, including financial statements and schedules, and all exhibits thereto, and (b) so long as a prospectus relating to the Shares is required to be delivered under the Act (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 Placement Agents may reasonably request.
(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) The Company will not make distribute any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain Offering material in accordance connection with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be 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.
(ix) The Company will apply the net proceeds from the offering and sale of the Shares Securities other than each Base Prospectus and Prospectus Supplement, or such other materials as to which the Selling Agent shall have consented in the manner set forth in the Final Prospectus under the caption “Use of Proceedswriting.”
(xf) Prior to the sale of the Shares Securities to the Investors, the Company will cooperate with the Placement Agents Selling Agent and their 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 the Placement Agents Selling Agent may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(xig) The Company will use its best efforts to cause apply the Shares to be listed for trading on The Nasdaq Capital Market at net proceeds from the time offering and sale of the ClosingSecurities in the manner set forth in the Prospectus Supplement under the caption “Use of Proceeds.”
(xiih) 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.
(xiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the distribution of any Written Testing-the-Waters Communication, 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 statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) 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 correct such statement or omission; and (iii) supply any 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 of the 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 of 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 officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company 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 release or waiver.
Appears in 1 contract
Samples: Selling Agency Agreement (Monogram Technologies Inc.)
